                                                                                           06/07/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  April 11, 2017 Session

                   STATE OF TENNESSEE v. JUSTICE BALL

                  Appeal from the Criminal Court for Shelby County
                    No. 14-06091       Glenn Ivy Wright, Judge
                      ___________________________________

                            No. W2016-01358-CCA-R3-CD
                        ___________________________________


A Shelby County jury found the defendant, Justice Ball, guilty of especially aggravated
kidnapping, aggravated robbery, carjacking, employing a firearm during a dangerous
felony, and evading arrest. The trial court imposed an effective fifteen-year sentence to
be served at one hundred percent, and the defendant appealed. On appeal, the defendant
challenges the sufficiency of the evidence supporting his convictions, arguing the
evidence was insufficient to find him criminally responsible for the indicted offenses,
while further challenging the constitutionality of the criminal responsibility statute. The
defendant also argues the trial court erred in instructing the jury on criminal
responsibility and their duty to not independently investigate the case. The defendant
asserts the trial court erred by not granting his pre-trial motion to suppress or motion for a
mistrial made during the State’s case-in-chief. Finally, the defendant asserts the trial
court’s cumulative errors warrant a new trial. After our review, we affirm the judgments
of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
TIMOTHY L. EASTER, JJ., joined.

Gregory D. Allen, Memphis, Tennessee, for the appellant, Justice Ball.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Austin Scofield and Omar
Malik, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                         OPINION
                                        FACTS

       In the early morning hours of July 8, 2014, four men carjacked, kidnapped, and
robbed Muhammed Ceesay, the victim, as he was driving home from work in Shelby
County, Tennessee. While pursuing the stolen vehicle, an officer saw the defendant jump
out of and run from the victim’s car. As a result, the defendant was charged with
especially aggravated kidnapping, Tennessee Code Annotated section 39-13-305;
aggravated robbery, Tennessee Code Annotated section 39-13-402; carjacking,
Tennessee Code Annotated section 39-13-404; employing a firearm during the
commission of a dangerous felony, Tennessee Code Annotated sections 39-17-1324(b); -
1324(i)(1); and evading arrest, Tennessee Code Annotated section 39-16-603.

        At the joint trial of the defendant and co-defendant, Kennith Kimble, the victim
stated he was driving home from work at approximately 3:20 a.m. on July 8, 2014, when
his 1996 Toyota Rav 4 stalled as he approached a red light on Shelby Drive. At the time,
the driver’s side window was rolled down and the doors were unlocked. As the car
restarted, two men approached the victim’s stationary car. One man hit the victim across
the face with a gun, and both men began demanding money. Despite giving the men his
wallet and cell phone, the two men got into the backseat of the victim’s car, continued to
hit him, and told him to drive to an ATM located at the First Tennessee Bank branch on
Shelby Drive. The frightened victim complied.

       On the way to the bank, the men instructed the victim to stop near the WalMart on
Shelby Drive. There, the men in the backseat started “shouting at two of their friends
across the road.” The two “friends” got into the victim’s car, “one of them jumped in the
back and one of them jumped in the front.” According to the victim, the defendant was
the “friend” who got into the front seat and Kimble got into the backseat. Kimble
demanded the gun from the man who initially hit the victim, and continued hitting the
victim, while the defendant did not say anything or hit him. The victim explained he
intentionally looked at the men in his car throughout the incident. He also stated he did
not give any of the men permission to enter his car.

       After picking up the defendant and Kimble, the men told the victim to drive to
another ATM located at a gas station near Kirby Parkway and Shelby Drive. There, the
victim tried to explain to the men that he could not withdraw cash. Upon hearing this, the
original gunman hit the victim on the head, causing him to fall out of the car. The victim
explained, “when he hit me, I felt dizzy and my weight fell on the door and the door
opened, because it was already unlocked.” After falling out of the car, the victim ran
away and called police from a nearby gas station. During the incident, the victim was
forced to drive several city blocks with the four men.

                                          -2-
        Officer Brandon Hazlerig with the Memphis Police Department responded to the
victim’s call around 3:20 a.m. When he arrived at the gas station, he noted the victim
“had a swollen, bloody lip and he was very nervous, scared.” The victim explained four
black males carjacked him and gave a description of his vehicle. Less than ten minutes
later, dispatch announced that the victim’s car had been located. Specifically, Officer
David Garrett spotted the victim’s car on Hickory Hill and Mingle Drive. He began
following the car as it headed northbound on Hickory Hill. Officer Garrett stayed
approximately one hundred feet behind the car, explaining that he “followed it, giving
directions through dispatch for other cars to come into the area to assist.” While
following the victim’s car, Officer Garrett noticed “[t]he vehicle slowed to, maybe, five
to ten miles per hour, so I realized they were getting ready to bail.” At that time, Officer
Garrett turned on the headlights, a spotlight, and the blue lights on his patrol car.

       After jumping out of the car, two of the suspects ran north and two ran south.
Officer Garrett stated he clearly saw the defendant run from the car. He testified, “[t]he
rear passenger side door flew open and a male black jumped out, however, he stumbled
and fell in the street. When he popped up, he popped up right in front of my, looking
right into my headlights and I immediately recognized him as Justice Ball.” Officer
Anthony Billingsley testified that he helped establish a perimeter after the suspects ran
from the victim’s car. He saw footprints emerging from the wood-line, and ultimately
arrested Kimble as a result. Though Officer Billingsley’s name is listed on the
defendant’s arrest ticket, he maintained he did not arrest the defendant. Additionally,
Officer Billingsley explained he did not photograph the scene.

        Michael Coburn, a crime scene investigator with the Memphis Police Department,
processed the victim’s 1996 Toyota Rav 4 after the July 8, 2014 crimes. Investigator
Coburn photographed items found inside the victim’s car, including two cell phones and
the victim’s wallet and its contents. He also lifted fingerprints from the victim’s cell
phone and the exterior of the victim’s car. Nathan Gathright, an expert in latent prints,
testified that the defendant’s left palm print was found on the victim’s cell phone, and
prints belonging to a man named Malik Pounds were found on the exterior of the victim’s
car.

       Finally, the State offered the defendant’s statement into evidence through Sergeant
Reginal Titus of the Memphis Police Department. Sergeant Titus interviewed the
defendant after the defendant waived his Miranda rights. See Miranda v. Arizona, 384
U.S. 436, 444 (1966). Sergeant Titus explained that he believed the defendant “tried to
downplay his involvement” as he explained the events of July 8, 2014. In the statement,
which Sergeant Titus read into the record, the defendant admitted to fleeing from the
victim’s car, but stated he “didn’t know nothing about the stolen car but [he] knew about
them trying to get the money and taking him to the ATM.” The defendant admitted to
                                           -3-
turning off the victim’s cell phone but stated the other men told him “to turn it off
because they can track it.” The defendant stated he “was sitting in the back behind the
passenger,” and noted that he did not hit the victim while in the car.

        In his statement, the defendant further explained that after failing to get cash from
the victim at the ATM, another suspect “pushed the victim away,” and they drove off.
The defendant claimed he asked the men to take him home, but a police car, with its
lights on, started following them. The defendant told the men to pull over and “[j]ust
take the ticket,” but they continued driving down Myers Road instead. The defendant
stated, “[w]hen the car started slowing down, everybody hopped out. When everybody
hopped out, the car was still moving and I hit the ground and then I got up and start
running.” The defendant ran into the woods as the victim’s car crashed, and was soon
arrested in the area, along with Kimble. After being arrested, officers took the defendants
to the Kroger on Hickory Hill where officers “let the victim identif[y]” the two suspects.

        During their testimonies, the victim and Officer Hazlerig described the
identification of the defendants in the Kroger parking lot. According to Officer Hazlerig,
the showup occurred because two men were located in the area, “and we wanted to make
sure that we had the right suspects.” Officer Hazlerig explained the showup procedure,
as follows:

              It is a procedure that we do where if we locate a suspect within an
       hour in the vicinity of a crime we are allowed to do what they call a single
       shot identification. We have to get approval from our supervisor, or he
       dictates whether we do it, or not. And that’s when we do the procedure
       where we bring a suspect in front, and we keep the victim in the squad car,
       so they could see a good view of the suspect and then they tell us if we
       have the right person.

According to Officer Hazlerig, officers followed this procedure. He explained that
approximately thirty minutes passed between his initial meeting with the victim and the
showup conducted in the Kroger parking lot located near Ridgeway Road and Hickory
Hill Road. Officer Hazlerig stated that the victim’s car “had crashed in [the] area of
Myers and Hickory Hill,” approximately four miles from the gas station where he
initially met the victim. During the showup, the victim sat in the backseat of Officer
Hazlerig’s patrol car as the defendant and Kimble “were taken out of the squad car, one
at a time.” Officer Hazlerig told the victim “to take a good look at each one, tell me if he
recognized those people as the ones that committed the crime.” At the time, the
defendant was handcuffed, though the victim stated he could not tell, and illuminated by
a spotlight. The victim told officers the defendant and Kimble were two of the men
involved in the crimes against him.
                                            -4-
        The defendant did not offer any proof in his defense. Kimble, however, testified
at trial. Aside from claiming he was misidentified, the only testimony Kimble offered
pertinent to the defendant’s case was his attack on the credibility of Officers Billingsley
and Garrett. Specifically, Kimble testified that the officers lied about his involvement in
the crimes against the victim. At the close of the proof, the jury was unable to reach a
decision as to Kimble’s charges. However, the jury returned a guilty verdict against the
defendant on all of the charged offenses, and this appeal followed.

                                            ANALYSIS

       On appeal, the defendant presents several issues for our review. First, the
defendant challenges the sufficiency of the evidence for his convictions obtained under
the theory of criminal responsibility, arguing he was merely present during the crimes
rather than an active participant. The defendant also challenges the constitutionality of
the criminal responsibility statute and argues the trial court did not properly instruct the
jury on criminal responsibility or their duty to not independently investigate the case.
Additionally, the defendant asserts the trial court erred by not granting his motion to
suppress or his motion for a mistrial. Finally, the defendant argues the trial court’s
cumulative errors warrant a new trial. The State asserts sufficient evidence exists to
sustain the defendant’s convictions and argues the defendant is not entitled to relief as to
the alleged unconstitutionality of the criminal responsibility statute or the alleged errors
of the trial court. Upon our thorough review of the record, we agree with the State and
affirm the judgments of the trial court.

   I.     Sufficiency of the Evidence

        When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court 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 also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our Supreme Court has stated the rationale for this rule:

                                             -5-
      This well-settled rule rests on a sound foundation. The trial judge and the
      jury see the witnesses face to face, hear their testimony and observe their
      demeanor on the stand. Thus the trial judge and jury are the primary
      instrumentality of justice to determine the weight and credibility to be
      given to the testimony of witnesses. In the trial forum alone is there human
      atmosphere and the totality of the evidence cannot be reproduced with a
      written record in this Court.


Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (1963)). “A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘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)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

       As alleged against the defendant by the State, one is “criminally responsible for an
offense committed by the conduct of another, if: [a]cting with intent to promote or assist
the commission of the offense, or to benefit in the proceeds or results of the offense, the
person solicits, directs, aids, or attempts to aid another person to commit the offense.”
Tenn. Code Ann. § 39-11-402(2). If convicted under the criminal responsibility theory,
defendants are “considered to be principal offenders, just as if they had committed the
crime themselves.” State v. Little, 402 S.W.3d 202, 217 (Tenn. 2013) (citing State v.
Carson, 950 S.W.2d 951, 954 (Tenn. 1997)).
                                           -6-
        Generally, the defendant claims he did not have the requisite intent to be found
criminally responsible for the crimes against the victim because he simply “entered the
vehicle, sat there quietly, and never help[ed] in any manner.” While “[m]ere presence
during the commission of a crime is insufficient to support a conviction,” we disagree
with the defendant’s characterization of his involvement in the crimes against the victim.
Id. (citing Flippen v. State, 365 S.W.2d 895, 899 (1963)). The defendant was convicted
under the theory of criminal responsibility as to especially aggravated kidnapping,
aggravated robbery, carjacking, and employing a firearm during a dangerous felony. We
will discuss the sufficiency of the evidence as it applies to each offense, in turn.

       First, the record clearly establishes that the defendant participated in the carjacking
of the victim. A carjacking “is the intentional or knowing taking of a motor vehicle from
the possession of another by use of: (1) [a] deadly weapon; or (2) [f]orce or intimidation.”
Tenn. Code Ann. § 39-13-404(a)(1), (a)(2). At trial, the victim described how two men
gained entry into his car by hitting him across the face with a gun. Once in his car, the
men demanded the victim drive to an ATM while continuing to hit him with the gun.
The men then told the victim to stop to allow the defendant and Kimble in the car. The
defendant took the victim’s phone and turned it off so as to avoid being “tracked” by the
police. The four men ordered the victim to drive to another ATM where, after the victim
explained he could not access any money, one of the men again hit the victim and
knocked him out of the car. The four men, including the defendant, then drove away in
the victim’s car and did not abandon the stolen vehicle until they were followed by
police. Officer Garrett testified that he saw the defendant jump out of the victim’s car
and run away, and the defendant admitted the same in his statement to police. The
defendant also admitted that he was aware of the plan to rob the victim, but claimed he
was unaware that he entered a stolen car on July 8, 2014. Upon our review of the record,
it is apparent the jury weighed the defendant’s statement against the vast amount of
evidence produced against him at trial, and found in favor of the State. In addition, any
inconsistencies alleged by the defendant were resolved by the jury in reaching their
verdict. This Court will not reweigh the evidence. Dorantes, 331 S.W.3d at 379.
Accordingly, sufficient evidence exists to show the defendant is criminally responsible
for carjacking the victim. The defendant is not entitled to relief.

        Similarly, the record shows the defendant confined the victim in his car in order to
steal from him. Especially aggravated kidnapping occurs when one “knowingly removes
or confines another unlawfully so as to interfere substantially with the other’s liberty”
through the use of a deadly weapon. Tenn. Code Ann. §§ 39-13-302(a); -305(a)(1).
Robbery is “the intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401. An aggravated
robbery occurs when the theft is “accomplished with a deadly weapon.” Tenn. Code
                                            -7-
Ann. § 39-13-402(a)(1). To be found guilty under the theory of criminal responsibility,
“[i]t is not, however, necessary for one to take a physical part in the crime;
encouragement of the principal is sufficient.” Little, 402 S.W.3d at 217 (citing State v.
McBee, 644 S.W.2d 425, 428 (Tenn. Crim. App. 1982)).

       Here, the victim testified that he did not give any of the men permission to enter
his car on July 8, 2014. The victim was scared and forced to drive several miles to two
ATM locations at gunpoint. The men took the victim’s cell phone and wallet, all while
continuing to hit him with a gun. The victim was confined in the car and was only able to
escape after being hit and falling into the unlocked driver’s side door while stopped at an
ATM. The defendant argues that because he did not physically possess the gun, he
cannot be convicted for especially aggravated kidnapping or aggravated robbery.
However, the defendant need not physically hold the gun to be found criminally
responsible for kidnapping or robbing the victim at gunpoint. This argument is without
merit. Accordingly, sufficient evidence exists to show the defendant participated in
confining the victim in his car and robbing him at gunpoint. See id.

        The defendant was also convicted of employing a firearm during the commission
of a dangerous felony, to wit: carjacking. Tenn. Code Ann. §§ 39-17-1324(b)(1); -
1324(i)(1)(D). As detailed above, the record is undisputed that the crimes against the
victim were accomplished through the use of a gun. The victim and responding officers
testified to the presence of a gun at the scene of the crimes on July 8, 2014. No evidence
was presented to rebut this fact. As such, sufficient evidence exists in the record to show
the defendant committed the felonies of carjacking, especially aggravated kidnapping,
and aggravated robbery through the use of a firearm. The defendant is not entitled to
relief as to this conviction.

       Though not addressed by the defendant, the record clearly supports the
defendant’s evading arrest conviction as well. “[I]t is unlawful for any person to
intentionally conceal themselves or flee by any means of locomotion from anyone the
person knows to be a law enforcement officer if the person [] [k]nows the officer is
attempting to arrest the person.” Tenn. Code Ann. § 39-16-603(a)(1)(A). The defendant
admitted in his statement to running from the victim’s car after being followed by police
with activated blue lights. Officer Garrett also testified he saw the defendant do so.
Relying on the above analysis, sufficient evidence exists to support the defendant’s
conviction for evading arrest. The defendant is not entitled to relief.

      The defendant also argues the trial court erred in denying his motion for judgment
of acquittal because it recognized “the proof was far less damming against [the
defendant] than against his co-defendant, Mr. Kimble,” and “no rational juror could have
concluded [the defendant] was guilty, especially over Mr. Kimble.” However, as
                                           -8-
explained above, sufficient evidence exists in the record to support the defendant’s
convictions regardless of his co-defendant’s trial results. “But verdicts as between two or
more defendants tried together in a criminal case need not demonstrate rational
consistency.” Pulley v. State, 506 S.W.2d 164, 169 (Tenn. Crim. App. 1973) (internal
citations omitted). Accordingly, the jury’s failure to reach a unanimous verdict as to
Kimble has no bearing on the outcome of the defendant’s case, and the trial court did not
err in denying the defendant’s motion for judgment of acquittal. This argument is
without merit.

   II.    Motion to Suppress

        Suppression issues on appeal are subject to a well-established standard of review.
Appellate courts are bound by a trial court’s findings of facts determined after a
suppression hearing unless the evidence preponderates against them. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996); State v. Matthew T. McGee, No. E2011-01756-CCA-R3-
CD, 2012 WL 4017776, at *2 (Tenn. Crim. App. Sept. 13, 2012). “Questions of
credibility of the witnesses, the weight and value of the evidence, and resolution of
conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.”
Odom, 928 S.W.2d at 23. Appellate courts should consider the entire record, affording
the prevailing party “the strongest legitimate view of the evidence and all reasonable
inferences drawn from that evidence.” Matthew T. McGee, 2012 WL 4017776, at *2
(citing State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001)); see also State v. Sanders, 452
S.W.3d 300, 306 (Tenn. 2014). However, applying the law to the factual findings of the
trial court is a question of law, which is reviewed de novo on appeal. State v. Yeargan,
958 S.W.2d 626, 629 (Tenn. 1997).

        On appeal, the defendant suggests the “showup” identification of the defendant in
the Kroger parking lot was improper. It is understood in Tennessee that though
“showups,” like the one that occurred in this case, “are inherently suggestive,” they are
permissible if “the showup occurs as an on-the-scene investigatory procedure shortly
after the commission of the crime.” State v. Thomas, 780 S.W.2d 379, 381 (Tenn. Crim.
App. 1989). At the suppression hearing, the trial court noted that the defendant’s
“showup” was “suggestive,” but found it was allowed because it occurred “shortly after
the crime, it was within one hour and that is permissible, by law.” We agree with the trial
court’s assessment.

        The evidence produced at trial established that the defendant’s “showup” occurred
in the area of the criminal activity less than an hour after the victim’s initial meeting with
police in accordance with Memphis Police Department policy. Officer Hazlerig
explained the procedure of the Memphis Police Department and provided a timetable
which established that the defendant’s identification occurred less than an hour after the
                                            -9-
crimes were completed and in the same area of the criminal activity. Officer Hazlerig
provided street names and details of the area which established that the Kroger parking
lot was located in the same vicinity as the area where the victim’s car crashed, both off of
Hickory Hill Road. The victim’s testimony corroborated that the “showup” occurred less
than an hour after his initial interaction with police, and he further testified that he
intentionally looked at the men in his car throughout the criminal episode. As a result,
nothing in the record preponderates against the trial court’s finding that the “showup”
was permissible in this case. The defendant’s arguments on appeal are unpersuasive, and
we affirm the trial court’s denial of the defendant’s motion to suppress.

   III.   Jury Instructions and the Criminal Responsibility Statute

        Generally, the defendant asserts the trial court erred in instructing the jury on
criminal responsibility. He argues “the proof did not fairly raise this instruction” as he
was merely present during the crimes against the victim. However, it is well settled that
“[t]rial courts should provide a jury instruction on criminal responsibility if the ‘issue is
fairly raised by the evidence.’” Little, 402 S.W.3d at 217 (quoting State v. Andrew L.
Collins, No. M2005-01685-CCA-R3-CD, 2006 WL 2380610, at *4 (Tenn. Crim. App.
Aug. 15, 2006). As explained above, the facts established at trial clearly warranted the
instruction.

       In order to establish guilt through the theory of criminal responsibility, the State
must show the defendant “knowingly, voluntarily and with common intent unite[d] with
the principal offender[] in the commission of the crime.” Id. (quoting State v. Maxey,
898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) (internal citations omitted)). The State
accomplished this at trial. Although the defendant told police that he was unaware the
car was stolen, the defendant admitted he knew the plan was to force the victim to drive
to ATMs in order to rob the victim. The defendant also admitted that he turned off the
victim’s cell phone in order to evade the police. As a result, the defendant was indicted
for the primary offenses of especially aggravated kidnapping, aggravated robbery,
carjacking, employing a firearm during a felony, and evading arrest. The trial court
instructed the jury as to the charges, their lesser-included offenses, and criminal
responsibility for the conduct of another. The defendant’s own statement was sufficient
to establish that he was not only present during the crimes, but also that he had helped in
the commission of the same. The trial court did not err by providing an instruction on
criminal responsibility for the conduct of another.

       The defendant further argues the trial court failed to give a proper jury instruction
regarding criminal responsibility. Specifically, the defendant argues the trial court erred
in providing the jury with the Tennessee Pattern Jury Instruction, rather than providing

                                           - 10 -
the jury with specific language drafted by the defendant explaining criminal
responsibility. Again, we disagree.

        “It is well-settled in Tennessee that a defendant has a right to a correct and
complete charge of the law so that each issue of fact raised by the evidence will be
submitted to the jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn.
2001) (citing State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990)). Accordingly, trial courts have the duty to give “a
complete charge of the law applicable to the facts of the case.” State v. Davenport, 973
S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citing State v. Harbison, 704 S.W.2d 314,
319 (Tenn. 1986)). An instruction will only be considered prejudicially erroneous if it
fails to submit the legal issues fairly or misleads the jury as to the applicable law. State v.
Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (citing State v. Vann, 976 S.W.2d 93, 101
(Tenn. 1998)).

      With respect to criminal responsibility, the trial court instructed the jury as
follows:

              The defendants are criminally responsible as a party to the offenses
       of: Especially Aggravated Kidnapping; Aggravated Robbery; Carjacking;
       Employing a Firearm during a Felony; Intentionally Evading Arrest with a
       Motor Vehicle and Evading Arrest, if the offenses were committed by the
       defendant’s own conduct, by the conduct of another for which the
       defendant is criminally responsible, or by both. Each party to the offense
       may be charged with the commission of the offense.

              The defendant is criminally responsible for an offense committed by
       the conduct of another if, acting with the intent to promote or assist the
       commission of the offense, or to benefit in the proceeds or results of the
       offense, the defendant solicits, directs, aids, or attempts to aid another
       person to commit the offense.

              In deciding the criminal responsibility of the defendant, the jury may
       also take into consideration any evidence offered that the defendant
       attempted to thwart or withdraw from any of the offenses that followed
       from the original offense.

             To find a defendant criminally responsible for the acts of another, it
       is not necessary that you find the defendant was present or that the
       defendant took a physical part in the crime; encouragement of the principal

                                            - 11 -
         offender is sufficient. However, mere presence during the commission of
         the offense is not sufficient to support a conviction.

                Before you find the defendants guilty of being criminally responsible
         for said offenses committed by the conduct of another, you must find that
         all the essential elements of said offenses have been proven by the State
         beyond a reasonable doubt.

       This instruction was almost identical to the instruction found in the Tennessee
Pattern Jury Instructions. See T.P.I. - Crim. 3.01 (19th ed. 2015). This Court has
previously described pattern instruction 3.01 as “a correct statement of the law.” State v.
Mario Green, No. W2006-01383-CCA-R3-CD, 2008 WL 2331020, at *7 (Tenn. Crim.
App. June 5, 2008). Accordingly, the trial court did not err when denying the defendant’s
request for a different instruction. The defendant is not entitled to relief on this issue.

       Finally, the defendant argues the criminal responsibility theory, statute, and jury
instruction are unconstitutional. The State asserts the defendant has waived this issue
“because he did not file a pre-trial motion challenging the constitutionality of the criminal
responsibility statute.” However, regardless of the State’s waiver argument, this Court
recently held that the criminal responsibility statute is not void for vagueness and is
constitutional. See State v. George G. Thomas, No. E2013-01738-CCA-R3-CD, 2015
WL 513583, at *28-30 (Tenn. Crim. App. Feb. 5, 2015), perm. app. denied (Tenn. Aug.
12, 2015), cert. denied, 136 S. Ct. 1458 (2016); see also Gallaher v. Elam, 104 S.W.3d
455, 459 (Tenn. 2003) (“In evaluating the constitutionality of a statute, we begin with the
presumption that an act of the General Assembly is constitutional.”). This issue is
without merit.

   IV.      Mistrial

       Courts should only declare a mistrial in a criminal matter when required by
manifest necessity. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991).
A mistrial is an appropriate remedy when the trial cannot continue or a miscarriage of
justice would result if it did. State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim.
App. 1994). The decision to grant a mistrial is within the sound discretion of the trial
court, and this Court will not interfere absent a clear abuse appearing on the face of the
record. State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998). The party seeking the mistrial
has the burden of establishing the necessity for it. State v. Williams, 929 S.W.2d 385,
388 (Tenn. Crim. App. 1996).

      On appeal, the defendant argues the trial court abused its discretion by denying his
motion for mistrial made during the testimony of Officer Garrett. While providing his
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narrative of the events that occurred on July 8, 2014, Officer Garrett testified that he
recognized the defendant when he fled from the victim’s car. According to the
defendant, Officer Garrett’s testimony “l[e]d to the impermissible inference that [Officer]
Garrett knew [the defendant] previously due to an arrest or some negative interaction
with police.” The State disagrees, citing additional testimony from Officer Garrett
wherein he stated “that he had met the defendant through prior community outreach
efforts made by the police department to improve community relations.”

        Upon our review of the record, we do not find that Officer Garrett’s testimony
warrants a mistrial. When read in full context, Officer Garrett did not imply he knew the
defendant through prior arrests. Rather, when Officer Garrett testified that he and the
defendant knew each other “[]very well,” the defendant immediately moved for a
mistrial. The trial court overruled the defendant’s motion and allowed Officer Garrett to
“clear this up” by explaining his familiarity with the defendant. Officer Garrett then
testified that he recognized the defendant through his work in “community policing,”
which he defined as “when officers are involved in the neighborhoods.” Thus, Officer
Garrett specifically explained that he knew the defendant only through his work in
community policing. As such, the defendant has failed to meet his burden and is not
entitled to relief as to this issue.

   V.     Jury Instructions Regarding Outside Research

        The defendant argues “it was error for the [c]ourt not to instruct the jury to not
perform their own investigation or research the case outside of trial on the first day of
trial.” However, “[a] party challenging the validity of a verdict must produce admissible
evidence to make an initial showing that the jury was exposed to extraneous prejudicial
information or subjected to an improper outside influence.” State v. Adams, 405 S.W.3d
641, 651 (Tenn. 2013) (citing Caldararo ex rel. Caldararo v. Vanderbilt Univ., 794
S.W.2d 738, 740-41 (Tenn. Ct. App. 1990)). The defendant has failed to meet his initial
burden because he has not presented any evidence that the jury was exposed to
extraneous information or outside influence. Absent evidence of abuse, the defendant is
not entitled to relief. Furthermore, the record shows the trial court instructed the jury on
their duty to not investigate the case at the start of the second day of trial. This Court
presumes the jury followed the trial court’s instructions. State v. Joshua R. Starner, No.
M2014-01690-CCA-R3-CD, 2016 WL 1620778, at *21 (Tenn. Crim. App. Apr. 20,
2016) (citing State v. Young, 196 S.W.3d 85, 111 (Tenn. 2006); State v. Shaw, 37 S.W.3d
900, 904 (Tenn. 2001)). This issue is without merit.




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   VI.   Cumulative Error
       The defendant argues he was denied a fair trial because of an accumulation of
errors by the trial court. We discern no error by the trial court, so the defendant’s
argument is without merit. See State v. Odom, 137 S.W.3d 572, 605 (Tenn. 2004).

                                  CONCLUSION

       Based upon the foregoing authorities and reasoning, the judgments of the trial
court are affirmed.




                                          ____________________________________
                                          J. ROSS DYER, JUDGE




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