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

          STATE OF TENNESSEE v. MATTHEW GLEN HOWELL

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


                            No. M2016-01812-CCA-R3-CD


The defendant, Matthew Glen Howell, who was originally charged with aggravated
assault, appeals his 2016 Davidson County Criminal Court conviction of simple assault,
which was imposed by the trial court after the jury found the defendant guilty of the
inapplicable lesser included offense of reckless aggravated assault. The defendant argues
that, because the jury acquitted him of the crime of intentional or knowing aggravated
assault and instead found him guilty of reckless aggravated assault, the trial court erred
by amending the conviction offense to one that required an intentional or knowing mens
rea. The defendant also challenges several of the trial court’s evidentiary rulings.
Because the jury found the defendant guilty of a crime that did not exist under the facts of
the case and because double jeopardy and collateral estoppel principles precluded the trial
court from imposing a conviction that required an element of which the defendant had
already been acquitted, the defendant’s conviction of simple assault is vacated, and the
case is dismissed.

   Tenn. R. App. P. 3; Judgment of the Criminal Court Vacated; Case Dismissed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, J., joined. TIMOTHY L. EASTER, J., filed a separate dissenting
opinion.

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

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Glenn R. Funk, District Attorney General; and Derry Harper, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                       OPINION

             In April 2015, the Davidson County Grand Jury charged the defendant with
one count each of resisting arrest and aggravated assault by causing the victim, Liela
Avila, to fear bodily injury by use or display of a deadly weapon. The trial court
conducted a jury trial in February 2016.

               The State’s proof at trial showed that the victim moved to Nashville in
early September of 2014 to pursue a career in music. Approximately one month later,
she met the defendant at a karaoke bar and mentioned that she was searching for a new
place to live. The defendant told the victim that he had a room to rent at his residence at
1236 Canyon Ridge Court, and the victim agreed to pay $350 per month in rent. The
victim moved into the defendant’s residence around October 12, 2014, and met the
defendant’s then-girlfriend, Alisha Brown, who also resided at the defendant’s home.

               The victim testified that she, the defendant, and Ms. Brown got along well
at first. At some point in November, the defendant’s dog escaped from the house and
attacked a neighbor’s cat. According to the victim, the defendant blamed the victim for
the incident and told her that she owed “a couple thousand dollars” for the cat’s
veterinary bills. The victim received a citation from Animal Control. She went to court,
explained that she “wasn’t guilty,” and the court cited the defendant instead “because it
was his dog and [the victim] wasn’t even home at the time” of the incident. The
defendant then informed the victim that he and the cat’s owner had agreed to settle the
matter for approximately $1,600 and that the victim “was gonna have to pay for it.”

             Because the victim was preparing to fly to Los Angeles to spend
Thanksgiving with her family and because she was concerned about starting a “heated
argument” with the defendant when she was leaving all of her personal belongings in the
defendant’s house, the victim “just tried to play it cool” and told the defendant that she
would “deal with” the situation when she returned to Nashville on December 8.

                At some point after moving into the defendant’s house but before leaving
town for Thanksgiving, the victim purchased a 1996 Chevrolet Lumina from a friend of
the defendant’s, whose name the victim could not recall. The victim testified that she
paid the friend $1,600 and that he “signed over the pink slip” for the vehicle while the
two were standing in the kitchen of the defendant’s residence. Through the victim’s
testimony, the State introduced into evidence a copy of the vehicle’s certificate of title,
which lists the victim as the owner of the vehicle. The victim denied obtaining the
vehicle’s title from the defendant or paying the defendant for the vehicle.



                                           -2-
               While the victim was in California, the defendant contacted her to inform
her that her new vehicle, which was parked on the street in front of the defendant’s house,
was blocking his mailbox and that the mailman was going to have the car towed because
of his inability to deliver the mail. The defendant asked her to mail him a set of her car
keys so that he could move her vehicle and prevent its being towed. Because the victim
had two sets of car keys, she mailed one set to the defendant.

              On the evening of December 7, the victim received a text message from the
defendant, which stated, “‘You need to find a new place to live, because you can’t live
here anymore.’” The victim sent a text message back to the defendant, asking him what
he was talking about, but the defendant never responded. When the victim returned to
Nashville the following evening, she took a taxi to the defendant’s residence, arriving
between 9:00 and 9:30 p.m. The front door to the residence was unlocked, and the victim
walked inside. She immediately asked the defendant about the location of her vehicle,
having noticed that it was not parked in front of the house. The defendant responded,
“‘You aren’t going to see that car again, unless you pay me the money for the vet bill.’”
The victim “tried to reason with him” but found it difficult because the defendant “was
very intoxicated.” The victim eventually told the defendant that she would “walk to a
place” so that she could ask her “parents to wire [her] some money.” The victim testified
that her intent was to pay “half” of the veterinarian’s bill, explaining that, even though
the dog’s escape from the residence was not her fault, she “was willing to pay six-
hundred bucks, to just get [her] things and leave and never look back, and just get away
from that place.”

             Approximately 45 minutes later, the victim returned to the defendant’s
residence and again entered though the unlocked front door. The victim informed the
defendant that she had the money but that she needed to know the location of her car.
The defendant replied that the car had been parked in his garage all along. The victim
then described what happened next:

                     I started to gather some of my belongings and started
              to put it in the car. Again, he was very intoxicated. He was
              downstairs on the sofa. He wasn’t really – he didn’t really
              know what was going on. He was just kind of incoherent.

                     I was just trying to just get my things and just go, as
              quickly as I could. And, when I had most of my stuff packed
              away, I was – I had told him, “I’m leaving, and I’m not
              giving you any money. And, if you don’t let me leave, I’m
              gonna call the cops.”

                                           -3-
                    ....

                     After that I – at that – when I said that, I was upstairs,
             at the top of the stairs, still gathering some of my things from
             my room; the [d]efendant was at the bottom of the stairs.

                     I turned around back to my room, just to grab a coupla
             [sic] more things. And, as I left the room and went to the
             stairs, I saw the [d]efendant with a gun, coming – stumbling
             up the stairs towards me, pointing the gun at my head.

                    ....

             He had the gun in his right hand. He had his hand on the
             banister; and he was stumbling drunk up the stairs, pointing
             the gun at me, and he was yelling at me.

                    ....

                    He said, “You’re leaving my f[***]ing house right
             f[***]ing now.”

                    And I said, “Please don’t point a gun at me.”

                    And he said, “[Y]ou are godd[***] certain. Get the
             f[***] out of my f[***]ing home now.”

Through the victim’s testimony, the State introduced into evidence and played for the
jury an audio recording of the preceding four-sentence exchange that the victim made on
the night in question using an application on her cellular telephone.

              The victim testified that she was “in shock” and was “very afraid that the
gun was going to go off and shoot” her. According to the victim, as the defendant began
ascending the stairs toward her, she developed “tunnel vision,” dropped her remaining
personal belongings, and fled through the front door. The victim then ran to a neighbor’s
house, where she called 9-1-1 to report that her “roommate pointed a gun at” her and
“wouldn’t let [her] leave with [her] property.”

               Metropolitan Nashville Police Department (“Metro”) Officers Joshua
Vaughn and Wallis Massey were the first to respond to a call of a “domestic-related”
situation that involved a handgun at 1236 Canyon Ridge Court in the early morning hours
                                            -4-
of December 9. Officer Massey initially spoke with the victim, who was standing outside
of a residence a few houses away from the subject address, and the victim told Officer
Massey that the defendant had threatened her with a handgun if she did not pay her rent.
Officer Vaughn and Officer Justin McCormick, who had just arrived on the scene,
approached the defendant’s residence, and the defendant appeared at the front door.
When the officers asked the defendant to explain what had transpired, the defendant
repeatedly claimed that he had done “nothing wrong” and that he had “never placed
hands on the victim.” When Officer McCormick asked the defendant if he was in
possession of any weapons, the defendant responded that he had weapons inside the
house but none on his person. Officer McCormick asked the defendant if he could
conduct a pat-down, and the defendant adamantly refused. Believing that a pat-down
was necessary to ensure his safety, Officer McCormick grabbed the defendant’s left arm,
prompting the defendant to turn and pull away from Officer McCormick. Other officers
then stepped in to assist Officer McCormick in placing handcuffs on the defendant.

              When the defendant had been taken into custody and given his Miranda
warnings, the defendant told Officer McCormick that “he had a handgun during the
incident and that it was down to the side but he never pointed it at the victim.” The
defendant also stated that “he wasn’t stupid and wouldn’t have one in the chamber.”
Detective Daniel Polk, who spoke with the defendant on the scene after issuing Miranda
warnings, recalled that the defendant had told him that he had the gun “in [his] hand” but
that he “did not point it at” the victim during the dispute. Officer Vaughn recovered the
handgun at issue, which was a semiautomatic Glock and which was loaded with a
magazine containing 45-caliber bullets.

              After the defendant had been placed in a police car, Officer Massey and
Metro Officer James Jensen accompanied the victim back inside the residence so that she
could retrieve her remaining belongings. When the victim entered her car inside the
garage, the engine would not start. The victim then asked the officers if they would assist
her in pushing her vehicle into the street so that she could have the car towed. The
officers informed the victim that they were unable to assist her because they had no proof
of ownership of the vehicle, so the victim placed her car into neutral and pushed the car
onto the street. The victim slept inside her vehicle that night, and the following morning,
the victim had the vehicle towed.

              On cross-examination, the victim clarified that she had paid the defendant a
total of $700 in rent: $350 for October and another $350 on November 1. The victim
denied that the defendant had “kicked [her] out” of his house in November, but she
admitted that she had never had a key to the residence. Although the victim admitted that
she had contacted her friend, Shawn, during the time period when she left the defendant’s

                                           -5-
house under the guise of collecting money for him, she denied that Shawn had ever
entered the defendant’s house on the night in question.

               With this evidence, the State rested. Following a Momon colloquy and the
trial court’s denial of the defendant’s motion for judgments of acquittal, the defendant
elected to testify and to present proof.

                Edward Allen Yeargan testified that he had power of attorney for his wife’s
parents and that he had sold their 1996 Chevrolet Lumina to the defendant on December
1, 2014. Mr. Yeargan testified to the difficulties the defendant had in locating the
original title document and in actually getting the vehicle titled in the defendant’s name.
Through Mr. Yeargan’s testimony, the defense marked for identification purposes
photocopies of the purported bill of sale and duplicate car title. Mr. Yeargan explained
that he gave the original documents to the defendant and that the originals were either
“taken” or “lost.”

              Ms. Brown, a correctional officer at the Tennessee Prison for Women,
resided with the defendant at 1236 Canyon Ridge Court in 2014. At the time they met
the victim, the defendant was out of work and Ms. Brown was the primary wage-earner.
Because their mortgage payment was $1,500 per month, they thought that the victim
would be “a good candidate” for rental income.

               Ms. Brown recalled that the victim never paid any rent, and Ms. Brown was
“under the assumption” that when the victim left to go to California, she did not plan to
return to Nashville. Ms. Brown believed that she and the defendant “were to package the
rest of [the victim’s] stuff up and mail it on out to her.” Ms. Brown was surprised when
the victim just “walk[ed] in through [the] front door” on the night of December 8. The
victim’s “eyes seemed bloodshot,” and she did not appear to be “completely sober.” The
victim was accompanied by an unknown man, and the two proceeded upstairs to the
victim’s former bedroom. Ms. Brown recalled that the victim mentioned “grabbing one
or two items,” so Ms. Brown was under the impression that she would be leaving soon.
The victim and her friend, however, stayed at the house, despite Ms. Brown’s repeated
requests over the course of nearly two hours that she leave the premises.

               Eventually, Ms. Brown went to bed because she needed to wake up at 4:00
a.m. to get to work. At some point, she was awakened by the defendant, who told her
that police officers were at the front door.

             The defendant testified that he met the victim at a local karaoke bar and that
he overheard her talking about living out of her car. The defendant offered to let the
victim move into his second-floor bedroom, provided she was willing to sign a lease
                                           -6-
agreement and give the defendant a security deposit. The victim agreed, moving in
around mid-October, but she never complied with either requirement. According to the
defendant, at some point after the victim moved in, she “got high and careless” and “left
the door open,” permitting the defendant’s dog to escape and attack a neighbor’s cat.
Because the victim refused to cover the veterinary bills and had never signed a lease or
paid any rent, the defendant told her that she must vacate the premises. The defendant
recalled that the victim had been gone for approximately one month when she,
accompanied by an unknown male, suddenly entered his house on the night of December
8.

              The defendant testified that both the victim and her friend “were so high”
that they were “incoherent.” Over the course of approximately two hours, the defendant
repeatedly demanded that they leave his residence, but the couple refused to go.
Eventually, the defendant forced the male companion out of the house when the man “put
hands on” the defendant. The defendant insisted that he never pointed a handgun at or
threatened the victim, but he acknowledged that he raised his voice. The defendant did,
however, say that the victim had threatened to harm herself and accuse him of inflicting
the harm. Although he did not see it happen, the defendant believed that the victim or her
friend stole his original certificate of title to his Chevrolet Lumina during the time they
were inside the residence. When the defendant returned to his residence the next day
following his release from jail, he was unable to locate the certificate of title.

              The defendant finally was successful in forcing the victim to leave, and he
locked the front door behind her. Less than half an hour later, officers arrived at his
house. When the defendant answered the door, he informed the officers that the victim
had broken into his house and that he wished to take out a restraining order against her.
The defendant acknowledged that he refused to allow the officers to enter his residence,
but he denied resisting arrest, testifying that the officers had used excessive force in their
efforts to handcuff him and place him under arrest. The defendant also denied telling
Detective Polk that he had been holding a handgun during his encounter with the victim.

               At the close of the proof and following closing arguments, the trial court
charged the jury, without objection from either party, that reckless aggravated assault was
a lesser-included offense of aggravated assault. The instruction provided to the jury with
respect to the elements of the crime of reckless aggravated assault read as follows:

                     For you to find the [d]efendant guilty of this offense,
              the State must have proven – proven beyond a reasonable
              doubt the existence of the following essential elements:



                                             -7-
             (1)    That the [d]efendant recklessly caused another to
                    reasonably fear imminent bodily injury; and

             (2)    That the act involved the use of or display of a deadly
                    weapon.

The jury was also instructed that reckless endangerment and simple assault were lesser
included offenses of aggravated assault.

               The jury then acquitted the defendant of both aggravated assault and
resisting arrest but found him guilty of reckless aggravated assault. In its role as
thirteenth juror, the trial court affirmed the jury’s verdict. Prior to sentencing, the
defendant moved to dismiss the reckless aggravated assault conviction on the ground that
the crime did not exist based upon the facts of the case. The trial court agreed that
reckless aggravated assault and reckless endangerment had been improperly charged
because the victim suffered no bodily injury, but the trial court amended the jury’s
verdict to that of simple assault. Following a sentencing hearing, the trial court imposed
a sentence of 11 months and 29 days of supervised probation, following the service of 30
days in jail.

              Following the trial court’s denial of the defendant’s motion for new trial,
the defendant filed a timely notice of appeal. In this appeal, the defendant contends that
because the jury acquitted him of the crime of intentional or knowing aggravated assault
and instead found him guilty of reckless aggravated assault, the trial court erred by
amending the conviction offense to one that required an intentional or knowing mens rea.
In addition, the defendant asserts that the trial court abused its discretion by excluding
evidence of his civil lawsuit against Metro officers involved in his arrest and by denying
his request to impeach the victim pursuant to Tennessee Rules of Evidence 608 and 616.
We will address each issue in turn.

                       I. Reckless Aggravated Assault Conviction

             The defendant first contends that the trial court erred by amending his
conviction offense of reckless aggravated assault to that of simple assault, arguing that
principles of double jeopardy and collateral estoppel preclude his conviction of an
offense which requires an intentional or knowing mens rea. The State counters that the
proper remedy is to remand the case for a new trial on “all proper lesser included
offenses.”

              Both the federal and state constitutions protect an accused from being
“twice put in jeopardy of life or limb” for “the same offence.” U.S. Const. Amend. V;
                                           -8-
Tenn. Const. art. 1, sec. 10. The state and federal provisions, which are quite similar in
verbiage, have been given identical interpretations. See State v. Waterhouse, 8 Tenn. (1
Mart. & Yer.) 278, 284 (1827) (“[W]e did not feel ourselves warranted in giving [the
double jeopardy provision of the state constitution] a construction different from that
given to the constitution of the United States, by the tribunal possessing the power, (and
of pre-eminent qualifications) to fix the construction of that instrument.”). The United
States Supreme Court has observed of the double jeopardy clause:

             Our cases have recognized that the Clause embodies two
             vitally important interests. The first is the ‘deeply ingrained’
             principle that ‘the State with all its resources and power
             should not be allowed to make repeated attempts to convict
             an individual for an alleged offense, thereby subjecting him to
             embarrassment, expense and ordeal and compelling him to
             live in a continuing state of anxiety and insecurity, as well as
             enhancing the possibility that even though innocent he may
             be found guilty.’ The second interest is the preservation of
             ‘the finality of judgments.’

Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360, 2365-66 (2009) (citations
omitted). To these ends, our state supreme court has observed that the Double Jeopardy
Clause provides “three separate protections: (1) protection against a second prosecution
for the same offense after acquittal; (2) protection against a second prosecution for the
same offense after conviction; and (3) protection against multiple punishments for the
same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).

             Whether multiple convictions violate double jeopardy is a mixed question
of law and fact that we review de novo with no presumption of correctness. State v.
Smith, 436 S.W.3d 751, 766 (Tenn. 2014) (citing State v. Thompson, 285 S.W.3d 840,
846 (Tenn. 2009)).

              Because the precise language of the statutes regarding assault is so germane
to our discussion of this issue and the facts of this case, we include them, in pertinent
part, here:

             Assault. – (a) A person commits assault who:
             (1) Intentionally, knowingly or recklessly causes bodily
             injury to another; [or]
             (2) Intentionally or knowingly causes another to reasonably
             fear imminent bodily injury; . . . .

                                           -9-
T.C.A. § 39-13-101(a)(1)-(2). Under this formulation, the offense of reckless assault
requires bodily injury.

             Aggravated Assault. – (a)(1) A person commits aggravated
             assault who:
             (A) Intentionally or knowingly commits an assault as defined
             in § 39-13-101, and the assault:
                    (i) Results in serious bodily injury to another;
                    (ii) Results in the death of another; [or]
                    (iii) Involved the use or display of a deadly
                    weapon; . . . .
             (B) Recklessly commits an assault as defined in § 39-13-
             101(a)(1), and the assault:
                    (i) Results in serious bodily injury to another;
                    (ii) Results in the death of another; or
                    (iii) Involved the use or display of a deadly weapon.

T.C.A. § 39-13-102(a)(1). By incorporating the offense of reckless assault into reckless
aggravated assault, the statute carries forward the requirement of bodily injury.

             Reckless Endangerment. – (a) A person commits an offense
             who recklessly engages in conduct that places or may place
             another person in imminent danger of death or serious bodily
             injury.
                     ....
             (b)(2) Reckless endangerment committed with a deadly
             weapon is a Class E felony; . . . .

T.C.A. § 39-13-103(a), (b)(2).

              Here, the defendant was acquitted of the offense of aggravated assault, the
pertinent elements of which were intentionally or knowingly causing the victim to
reasonably fear imminent bodily injury through the display of a deadly weapon. See
T.C.A. § 39-13-101(a)(1)(A)(iii). The jury convicted the defendant of the offense of
reckless aggravated assault, which, as charged, meant that the defendant recklessly
caused the victim to reasonably fear imminent bodily injury through the display of a
deadly weapon. See T.C.A. § 39-13-101(a)(1)(B)(iii). The problem with this conviction,
as acknowledged by the trial court, is that reckless aggravated assault “requires bodily
injury.” State v. Goodwin, 143 S.W.3d 771, 776 (Tenn. 2004). Similarly, felony reckless
endangerment “is not a lesser-included offense of aggravated assault committed by
intentionally or knowingly causing another to reasonably fear imminent bodily injury by
                                          - 10 -
use or display of a deadly weapon.” State v. Moore, 77 S.W.3d 132, 136 (Tenn. 2002).
Thus, the trial court chose to amend the defendant’s conviction to that of simple assault,
noting that simple assault only required that the defendant “place the [victim] in fear.”

              The trial court’s decision to amend the defendant’s conviction to simple
assault, however, was in error. Although the jury was charged on the lesser included
offense of reckless aggravated assault that did not exist under the facts presented, the jury
obviously believed that the evidence was sufficient to convict the defendant of this non-
existent offense. The only distinction between aggravated assault and reckless
aggravated assault as set forth in the jury instructions was the mens rea: intentional or
knowing versus reckless. Therefore, the jury found that the defendant did not act with
knowledge or intent, and the first category of double jeopardy protection, which
precludes a second prosecution for the same offense after acquittal, attached to the
finding of that mens rea. See Watkins, 362 S.W.3d at 541. Accordingly, when the trial
court amended the defendant’s conviction to simple assault, it did so in violation of the
defendant’s protection against double jeopardy because simple assault is an offense that
requires an intentional or knowing mental state and specifically excludes the mens rea of
recklessness. See T.C.A. § 39-13-101(a)(2).

              The State relies on State v. Goodwin in support of its position that the case
should be remanded to the trial court for a new trial “on all proper lesser included
offenses.” Goodwin was charged with aggravated assault by placing his victims in fear
by use or display of a deadly weapon, and the jury found him guilty of the lesser-included
offenses of reckless aggravated assault. Goodwin, 143 S.W.3d at 776. After determining
that the evidence was insufficient to support the convictions of reckless aggravated
assault because there was no proof of bodily injury, the high court remanded the case for
a new trial on the lesser-included offense of simple assault, which “the jury never
reached.” Id. at 776-77.

               In Goodwin, however, the issue of double jeopardy was never raised. More
importantly, Goodwin was decided before State v. Thompson, 285 S.W.3d 840 (Tenn.
2009). Thompson was charged, in a three-count indictment, with the premeditated first
degree murder and felony murder of one victim (Counts I and II) and the attempted first
degree murder of a second victim (Count III). Id. at 841. The jury convicted Thompson
of the lesser-included offenses of second degree murder in Count I and attempted second
degree murder in Count III, and the trial court declared a mistrial as to Count II. Id.
Because of jury instruction errors, this court reversed the convictions and remanded for a
new trial. Id. The State dismissed Count III prior to the second trial and only prosecuted
Thompson on the second degree murder and felony murder of the first victim. Id. At the
conclusion of the second trial, the jury convicted him of the lesser-included offenses of
voluntary manslaughter on Count I and second degree murder on Count II. Id. On
                                            - 11 -
appeal to this court, Thompson argued that “because the jury had in effect returned a
verdict of acquittal on the attempted first degree murder of the second victim, and
because the alleged attempted first degree murder was the only possible predicate offense
to support the felony murder charge in the retrial,” principles of double jeopardy and
collateral estoppel precluded the State from prosecuting him for felony murder. Id. This
court affirmed the convictions, and the supreme court granted permission to appeal. Id.

               The supreme court discussed the law of collateral estoppel, as applied
through double jeopardy law, stating that the United States Supreme Court, in Ashe v.
Swenson, 397 U.S. 436, 443 (1970), “defined collateral estoppel to mean that when an
issue of fact has been determined by a valid and final judgment, it may not be litigated by
the same parties in any future litigation” and noted that “its application [was] ‘embodied
in the Fifth Amendment guarantee against double jeopardy.’” Thompson, 285 S.W.3d at
847-48 (quoting Ashe, 397 U.S. at 445). To determine whether collateral estoppel is
applicable, courts must “consider the indictment and pleadings, the evidence, the
instructions to the jury, and any other relevant matter ‘in a practical frame and viewed
with an eye to all the circumstances of the proceedings’” to “determine ‘whether a
rational jury could have grounded its verdict upon an issue other than that which the
defendant seeks to foreclose from consideration.’” Thompson, 285 S.W.3d at 848
(quoting Ashe, 397 U.S. at 444). The party relying upon collateral estoppel has the
burden to prove “that a specific point at issue has been previously and finally decided.”
Thompson, 285 S.W.3d at 848 (citations omitted).

             In its analysis, the high court stated as follows:

             [T]here were originally three counts in the indictment: (I) the
             first degree premeditated murder of Robinson; (II) the first
             degree felony murder of Robinson, predicated upon her death
             being the result of an attempt to perpetrate the first degree
             murder of Burgins; and (III) the attempt to commit the first
             degree murder of Burgins. As to Counts I and II, first degree
             murder is defined, in pertinent part as to this Defendant, as
             follows: “(1) a premeditated and intentional killing of
             another; (2) a killing of another committed in the perpetration
             of or attempt to perpetrate any first degree murder . . . .”
             [T.C.A.] § 39-13-202(a)(1)-(2) (Supp. 2000).

                     In the first trial, proof of premeditation to the
             satisfaction of the jury was essential for a conviction as to
             Count I. The first jury returned a verdict of second degree
             murder, defined as the knowing killing of another, but,
                                           - 12 -
             implicitly, absent premeditation. See [T.C.A.] § 39-13-210
             (1997). Similarly, as to Count III in the first trial, the attempt
             to commit the first degree murder of Burgins, proof of
             premeditation to the satisfaction of the jury was essential to a
             conviction.    The jury, however, reached a verdict of
             attempted second degree murder, a knowing, but
             unsuccessful, effort to kill another, and implicitly an attempt
             absent the element of premeditation.

                    Obviously, the Defendant failed in his efforts to kill
             Burgins. When the jury found an attempt to commit second
             degree murder, their verdict necessarily established that the
             evidence was insufficient on the element of premeditation.
             That not only served as an acquittal of the primary charge, but
             a rejection of the State’s theory that the Defendant had
             attempted to kill Burgins with premeditation.              Our
             examination of the entire record of the evidence and the trial
             court’s instructions to the jury leads us to the inevitable
             conclusion that the jury could not “have grounded its verdict
             in the first trial upon an issue other than that which the
             Defendant seeks to foreclose.” Ashe v. Swenson, 397 U.S. at
             444.

                    The first trial produced a final, unappealable judgment
             as to the attempted first degree murder[, and a] judgment of
             acquittal . . . is final upon entry. Fong Foo v. U.S., 369 U.S.
             141, 143 . . . (1962) (quoting United States v. Ball, 163 U.S.
             662, 671 . . . (1896)). . . .

                    ....

             Because an essential element of the offense had been
             previously resolved by a jury in a manner favorable to the
             Defendant, the doctrine of collateral estoppel should have
             precluded the State from proceeding with the prosecution for
             felony murder both under the United States Constitution and
             independently under the Tennessee Constitution. Thus, the
             conviction for second degree murder, as a lesser-included
             offense of the felony murder charge, must be set aside.

Thompson, 285 S.W.3d at 851-55 (internal footnotes omitted).
                                           - 13 -
               In determining whether the present case falls within the ambit of the
collateral estoppel rule, we are aware that, in Ashe, the Supreme Court predicated the use
of collateral estoppel upon a factual issue’s being “determined by a valid and final
judgment.” Ashe, 397 U.S. at 445. In the present case, the issue of fact – whether the
defendant acted intentionally or knowingly – has been addressed as part of one, still-
ongoing case. Within the bounds of a given case, the law in some circumstances does not
countenance going behind a jury’s verdict to prove the intent of the jury. See, e.g., State
v. Davis, 466 S.W.3d 49, 72-77 (Tenn. 2015) (discussing inconsistent verdicts and
emphasizing that “‘[t]he validity accorded to [inconsistent] verdicts recognizes the
sanctity of the jury’s deliberations and the strong policy against probing into its logic or
reasoning, which would open the door to interminable speculation.’” (quoting United
States v. Zane, 495 F.2d 683, 690 (2nd Cir. 1974)); State v. Paul Allen St. Clair, No.
M2012-00578-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Nashville, Apr. 16, 2013)
(Smith, J., concurring in part and dissenting in part) (“Our state supreme court has said
that jury nullification is neither a personal right of the accused nor of the jury itself,
although juries sometimes do nullify applicable law.” (citing Wright v. State, 394 S.W.2d
883, 885 (Tenn. 1965)). Thus, the singular, continuing case view might lead us to ignore
the verdict of guilty of reckless aggravated assault. On the other hand, however, the jury
submitted its not-guilty verdict on aggravated assault and its guilty verdict on reckless
aggravated assault. The trial court then rejected the latter verdict and did so properly.
We discern that Thompson supports the view that the critical fact issue was specifically
and finally determined by the jury: the defendant did not act intentionally or knowingly.
Thus, the trial court is estopped from subsequently entering a conviction of assault, an
offense predicated upon an intentional or knowing action.

               The dissent would have this court follow the path urged by the State:
remand the case for a new trial on the lesser-included offense of simple assault.1 In
support of this position, the dissent cites a number of post-Thompson cases for the
proposition that a new trial on lesser-included offenses would be the appropriate remedy
where the greater offense did not stand. See State v. Whited, 506 S.W.3d 416, 447-48
(Tenn. 2016) (finding that although evidence was insufficient to support convictions of
especially aggravated sexual exploitation of a minor, double jeopardy principles did not
preclude State from retrying Whited on the lesser-included offense of attempt); State v.
Larkin, 443 S.W.3d 751, 818 (Tenn. 2013) (reversing and dismissing Larkin’s conviction
of first degree premeditated murder due to insufficient evidence but holding that Larkin
could be retried for second degree murder and any other appropriate lesser-included

1
         The State actually urged this court to remand the case for a new trial on “all proper lesser
included offenses.” As previously stated, however, the lesser-included offense of reckless endangerment
was improperly charged due to the lack of bodily injury, leaving nothing but simple assault as a potential
lesser-included offense.
                                                 - 14 -
offenses); State v. Climer, 400 S.W.3d 537, 571 (Tenn. 2013) (finding that although
double jeopardy principles precluded a retrial of Climer on first degree premeditated
murder, State was not precluded from retrial on second degree murder and abuse of a
corpse); State v. Cross, 362 S.W.3d 512, 522-23 (Tenn. 2012) (vacating Cross’s
conviction of felony reckless endangerment because it had been improperly charged as a
lesser-included offense of aggravated assault where the victim had been placed in fear
and remanding for a new trial “on any lesser-included offense that ha[d] not already been
rejected by the jury”). These cases, however, are distinguishable from the instant case.
In Whited, Larkin, and Climer, the high court permitted a retrial on lesser-included
offenses that did not contain an element of which the respective defendants had been
acquitted, as in the case currently under review. Thus, double jeopardy would have no
applicablity in such scenarios. With respect to the high court’s decision in Cross, that
defendant was convicted of felony reckless endangerment as an erroneously-charged
lesser-included offense of aggravated assault, and the supreme court remanded the case
for a retrial on any lesser-included offenses that had “not already been rejected by the
jury.” Cross, 362 S.W.3d at 523. We do not know, however, what additional lesser-
included offenses had been considered and rejected by the jury, and, more importantly,
the question of whether a retrial on the offense of simple assault would have been
precluded by double jeopardy principles was never addressed.

               In the instant case, the greater offense, aggravated assault, and the
conviction offense, reckless aggravated assault, have only three elements: the defendant’s
required mental state, the victim’s reasonable fear of imminent bodily injury, and the
defendant’s display of a deadly weapon. The two crimes are identical in nature with the
single exception of the required mental state. Presuming as we must that the jury
followed the instructions of the trial court, see State v. Cribbs, 967 S.W.2d 773, 784
(Tenn. 1998), and knowing, as previously discussed, that we cannot countenance jury
nullification, the only conclusion to be drawn under the specific facts of this case is that
the jury verdict necessarily includes a finding that the defendant did not act intentionally
or knowingly. Thus, the jury could not, as the dissent suggests, have grounded its verdict
in an issue other than that which the defendant seeks to estop. Moreover, we disagree
with the dissent’s conclusion that the jury’s acquittal of aggravated assault did not equate
to a “separate and distinct finding related to [the d]efendant’s mens rea.” To the
contrary, the acquittal did exatly that: it signaled its clear intent to acquit the defendant of
an intentional and knowing offense.

              We therefore hold that a new trial on the offense of simple assault is barred
by double jeopardy and collateral estopped principles. Because there are no other
available lesser-included offenses, we vacate the trial court’s judgment convicting the
defendant of assault, and the case is dismissed.

                                             - 15 -
             Having concluded that the defendant’s conviction must be vacated, we
nevertheless will address the defendant’s remaining issues in the interests of judicial
economy and potential further appellate review.

                             II. Evidence of Federal Lawsuit

              The defendant next contends that the trial court abused its discretion by
refusing to permit him to cross-examine Metro police officers regarding their bias.
Specifically, the defendant argues that he should have been permitted to question the
officers about the pending civil rights lawsuit he had filed against them in federal court,
in which he claimed that they had illegally arrested him by entering his home without a
warrant and without exigent circumstances, that they had illegally arrested Ms. Brown,
and that he was entitled to damages for, inter alia, injuries caused to his shoulder during
the arrest.

              “The right to explore or examine witnesses for bias is a fundamental right,”
and “[a]n undue restriction of this right may violate a defendant’s right to confrontation
under the Sixth Amendment of the United States Constitution and Article 1, Section 9, of
the Tennessee Constitution.” State v. Sayles, 49 S.W.3d 275, 279 (Tenn. 2001) (citations
omitted). A Confrontation Clause violation is indicated when a defendant shows “‘that
he was prohibited from engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the witness, thereby exposing to the jury
the facts from which jurors could appropriately draw inferences relating to the reliability
of the witnesses.’” State v. Black, 815 S.W.2d 166, 177 (Tenn. 1991) (quoting Delaware
v. Van Arsdall, 475 U.S. 673, 680 (1986)).

              Tennessee Rule of Evidence 616 provides that “[a] party may offer
evidence by cross-examination, extrinsic evidence, or both, that a party is biased in favor
of or prejudiced against a party or another witness.”

               In the instant case, the defendant sought to question the Metro officers who
responded to the scene on December 9 about the lawsuit he had filed against them in
federal court, arguing that such evidence was “clearly relevant to the officers’ bias under
Rule 616.” The trial court refused the request, stating as follows:

              But I don’t see the connection between that federal lawsuit
              and these officers’ bias with regard to this particular case. I
              mean this case occurred before. I just don’t see that. So with
              regard to that federal lawsuit, I don’t think any of it should
              come in, in this case. It’s not relevant to this case.

                                           - 16 -
               Here, the trial court has committed a clear abuse of discretion. The trial
court was focused inaptly upon the officers’ actions that preceded the filing of the federal
lawsuit in determining that the actions could not have been influenced by the filing of the
federal lawsuit. The court should have focused upon the officers’ testimony and the
impact of bias on the witnesses’ credibility. “A witness may be cross-examined on any
matter relevant to any issue in the case, including credibility.” Tenn. R. Evid. 611(b).
That the Metro officers involved in the underlying case had been sued in federal court for
unlawfully arresting the defendant on December 9, 2014, was certainly relevant to show
their potential bias against the defendant. Indeed, at the pretrial hearing on this matter, an
attorney with the Metro Legal Department appeared to argue a motion on separate but
related grounds. As part of his argument, the Metro attorney noted that if the defendant
were to be found guilty of resisting arrest at his criminal trial, such a finding would
“eliminate [the] federal claim” of excessive force. Thus, the knowledge that a guilty
verdict in the defendant’s criminal trial could result in the dismissal of the federal action
filed against them is, quite simply, a textbook example of bias, and the trial court abused
its discretion in preventing the defendant from not only cross-examining the Metro
officers about the lawsuit but from disallowing any extrensic proof of the lawsuit, as
permitted by Rule 616.

              Our inquiry does not end there, however. Because the defendant’s
constitutional right to confrontation was violated, see Black, 815 S.W.2d at 177, the
burden rested upon the State “‘to prove that the constitutional right violation [was]
harmless beyond a reasonable doubt,’” Sayles, 49 S.W.3d at 280 (quoting Momon v.
State, 18 S.W.3d 152, 167 (Tenn. 2000)). In making this determination,

              “[t]he correct inquiry is whether, assuming that the damaging
              potential of the cross-examination were fully realized, a
              reviewing court might nonetheless say that the error was
              harmless beyond a reasonable doubt. Whether such an error
              is harmless in a particular case depends upon a host of
              factors, all readily accessible to reviewing courts. These
              factors include the importance of the witness’ testimony in
              the prosecution’s case, whether the testimony was
              cumulative, the presence or absence of evidence
              corroborating or contradicting the testimony of the witness on
              material points, the extent of cross-examination otherwise
              permitted, and, of course, the overall strength of the
              prosecution’s case.”

Sayles, 49 S.W.3d at 280 (quoting Van Arsdall, 475 U.S. at 684).

                                            - 17 -
              Because the jury acquitted the defendant of resisting arrest, we apply these
factors only to the testimony of the officers as such testimony related to the defendant’s
conviction of reckless aggravated assault, such as it was. Both Officer McCormick and
Detective Polk testified that the defendant told them, following the issuance of Miranda
warnings, that he had been holding a handgun during his encounter with the victim but
that he had never pointed the gun at the victim. Because the victim testified that the
defendant had pointed a gun at her and because the defendant denied even having a gun
during his encounter with the victim, the testimony of Officer McCormick and Detective
Polk was particularly significant because it corroborated the victim’s testimony and
contradicted that of the defendant. Without question, the testimonies of Officer
McCormick and Detective Polk were important to the State’s case and were not
cumulative. The trial court did not permit any cross-examination on the issue of the
federal lawsuit, and the prosecution’s case – without the corroborating testimony of the
police officers – was frankly not particularly strong. This is a classic he-said-she-said
case, and, given the jury’s acquittal on the resisting arrest charge and conviction of the
lesser-included offense of reckless aggravated assault, the jury may have found the
defendant to be slightly more credible than the victim. Had the jury been apprised of the
pending federal civil rights lawsuit against the officers involved in the defendant’s arrest,
such information could certainly have caused the jurors to question the officers’
credibility. Thus, we cannot say that the trial court’s error in preventing cross-
examination and accompanying extrinsic proof of the lawsuit was harmless beyond a
reasonable doubt, and this alone constituted reversible error.

                              III. Impeachment of the Victim

              Finally, the defendant argues that the trial court abused its discretion by
denying his request to question the victim regarding a dismissed shoplifting charge in
order to attack her character for truthfulness pursuant to Tennessee Rule of Evidence
608(b) and by denying his request pursuant to Rule 616 to question the victim about
alleged favorable treatment she had received from the prosecution.

              Prior to the commencement of the trial, the court conducted a hearing
regarding the victim’s criminal charges. The victim testified that she had been issued
three citations on three separate dates in mid-to-late December of 2014: one for
possession of less than a gram of marijuana, one for shoplifting in the amount of $500 or
less, and one for possession of drug paraphernalia. With respect to the shoplifting
charge, the victim explained that, after she had been forced out of the defendant’s
residence, she was living out of her car and that she had made “the poor decision” to
shoplift some needed clothing. The victim admitted that all of the charges had been
dismissed earlier that same day but denied any knowledge that the dismissal was
occasioned by her testimony in the instant case against the defendant. At the conclusion
                                            - 18 -
of her testimony, the prosecutor effectively conceded that “there is a basis under the fair
reading of the law” to permit impeachment of the victim regarding the shoplifting charge.
The defense argued that the dismissal of the three charges earlier that day, particularly the
theft charge to which the victim admitted her guilt, evinced the appearance of a “quid pro
quo,” which should be presented to the jury. The trial court then ruled as follows:

              I mean [the victim] testified that there was nothing on the part
              of the district attorney’s office that she’s aware of that
              brought about the dismissal and it was no way related to this
              particular case. And, in any event, these are incidents that
              occurred after this, the charges here or the incidents alleged
              here, and they’re really not relevant to what happened on
              December the 8th and 9th of 2014. I just don’t see how they
              can be a part of it. They’re not relevant. So they’re not going
              to be allowed to come in.

              Tennessee Rule of Evidence 608 provides, in pertinent part, as follows:

              Specific instances of conduct of a witness for the purpose of
              attacking or supporting the witness’s character for
              truthfulness, other than convictions of crime as provided in
              Rule 609, may not be proved by extrinsic evidence. They
              may, however, if probative of truthfulness or untruthfulness
              and under the following conditions, be inquired into on cross-
              examination of the witness concerning the witness’s character
              for truthfulness or untruthfulness or concerning the character
              for truthfulness or untruthfulness of another witness as to
              which the character witness being cross-examined has
              testified. The conditions which must be satisfied before
              allowing inquiry on cross-examination about such conduct
              probative solely of truthfulness or untruthfulness are:

              (1) The court upon request must hold a hearing outside the
              jury’s presence and must determine that the alleged conduct
              has probative value and that a reasonable factual basis exists
              for the inquiry;

              (2) The conduct must have occurred no more than ten years
              before commencement of the action or prosecution, . . . .; and

              (3)    ....
                                            - 19 -
                     The giving of testimony, whether by an accused or by
              any other witness, does not operate as a waiver of the
              witness’s privilege against self-incrimination when examined
              with respect to matters which relate only to character for
              truthfulness.

Tenn. R. Evid. 608(b). This court has previously stated that a “prior instance of conduct
amounting to a theft would be admissible on the question of an individual’s credibility
under Tennessee Rule of Evidence 608(b) even if no conviction resulted from the
conduct.” State v. Mario C. Gray, No. M2006-00398-CCA-R3-CD, slip op. at 9 (Tenn.
Crim. App., Nashville, Dec. 17, 2007).

               Here, again, the trial court abused its discretion by relating the
impeachment basis – theft – to the time of the offense rather than to the time of giving
testimony. The prosecution’s entire case hinged on the victim’s credibility. That she had
been cited for theft – a crime that strikes at the heart of truthfulness and credibility – was
certainly relevant and probative, and no issues existed about the timeliness of the
conduct. Under Rule 608, the defendant should have been permitted to cross-examine
the victim about the theft. Additionally, the defendant should not only have been
permitted to question the victim about the very recent dismissal of her theft and drug
charges to show the victim’s bias under Rule 616, he should have been permitted to
introduce extrinsic evidence of the dismissal of those charges, as permitted under the
rule. See Tenn. R. Evid. 616. This violation of the defendant’s constitutional right to
confrontation was not harmless beyond a reasonable doubt, given the paramount
importance of the victim’s testimony to the State’s otherwise anemic case. Accordingly,
this, too, constituted reversible error.

                                         Conclusion

              Based upon the foregoing analysis, the judgment of the trial court is
vacated, and the case is dismissed.

                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




                                            - 20 -
