                                                                                         05/14/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              February 12, 2020 Session

             STATE OF TENNESSEE v. JAY AARON JACKSON

                Appeal from the Criminal Court for Davidson County
                     No. 2017-B-1249 Steve R. Dozier, Judge
                     ___________________________________

                           No. M2019-01128-CCA-R3-CD
                       ___________________________________


Defendant, Jay Aaron Jackson, was convicted by a Davidson County jury of one count of
coercion of a witness, two counts of domestic assault, and one count of domestic assault
by extremely offensive or provocative physical contact. The trial court sentenced
Defendant, as a Range II multiple offender, to an effective sentence of seven years,
eleven months, and twenty-nine days’ incarceration. On appeal, Defendant asserts that:
(1) the trial court erred in denying his motion to dismiss the indictment based on a
violation of Rule 16 of the Tennessee Rules of Criminal Procedure and Brady v.
Maryland; (2) the trial court erred by permitting the State to elicit impermissible and
prejudicial evidence in violation of Rule 404(b) of the Tennessee Rules of Evidence; (3)
the evidence was insufficient to support Defendant’s convictions for coercion of a
witness and one count of domestic assault; (4) the trial court erred in sentencing
Defendant as a Range II multiple offender; and (5) the trial court erred by instructing the
jury on flight. Following a thorough review, we affirm the convictions for coercion of a
witness (Count 1), domestic assault (Count 3), and domestic assault by extremely
offensive or provocative physical contact (Count 4) and reverse the conviction for
domestic assault (Count 2). Because the sentence in Count 2 was ordered to be served
concurrently with Count 1, we affirm the effective sentence of seven years, eleven
months, and twenty-nine days’ incarceration.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT W. WEDEMEYER, JJ., joined.

Manuel B. Russ (on appeal); Martesha L. Johnson (at trial), District Public Defender; and
Mary Ruth Pate and Dave Kieley (at trial), Assistant District Public Defenders, for the
appellant, Jay Aaron Jackson.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and J. Wesley
King, Assistant District Attorney General, for the appellee, State of Tennessee.


                                                   OPINION

                                  I. Factual and Procedural History

                                                  Indictment

      In May 2017, the Davidson County Grand Jury issued an indictment charging
Defendant with the following offenses:

Count       Offense                       Date                Classification          Victim
  1   Coercion    of                  a 8/29/16           Class D Felony         Sara Jackson
      Witness
  2   Domestic Assault                    8/29/16         Class A Misdemeanor    Sara Jackson
  3   Domestic Assault                    7/17/16         Class A Misdemeanor    Sara Jackson
  4   Domestic Assault                    7/17/16         Class A Misdemeanor    C.J. 1


                                               Pretrial Motions

                                                  Rule 404(b)

       Prior to trial, Defendant filed a motion in limine pursuant to Tennessee Rule of
Evidence 404(b), asserting that all witnesses should be prohibited from referring to a
portion of an alleged threat Defendant made to his then-wife, Sara Jackson. Specifically,
Defendant requested that the trial court exclude evidence that Defendant told Ms. Jackson
that he “had been in jail and he knew people who could” place a bomb in her car.
Defendant further asserted that witnesses should be prohibited from mentioning
Defendant’s pending charges in Cheatham County. In a separate motion in limine,
Defendant requested that the trial court exclude evidence regarding his pending charges
in Transylvania County, North Carolina, arguing that evidence of “other pending charges
stemming from an incident that occurred prior to the offense date of this indictment [was]
irrelevant to any question of [Defendant’s] guilt or innocence” and was not admissible
under Rules 401, 402, 403, and 404(b) of the Tennessee Rules of Evidence.


      1
          It is the policy of this court to refer to minors by their initials.
                                                       -2-
      At a hearing held before the start of Defendant’s trial, defense counsel argued:

              Your Honor, our position is that . . . all the State would need to have
      is the actual threat to place a bomb in the car, the follow-up statement that
      [Defendant] had been in jail and knew people who could do this is not
      necessary to prove the State’s elements of coercion. He’s already made the
      threat.

       The State submitted that it did not intend to introduce evidence regarding
Defendant’s pending charges in Cheatham County but that Defendant’s reference to
having been in jail and to knowing people who could help him was an important part of
the threat he made to Ms. Jackson.

      The trial court granted Defendant’s motion to exclude evidence regarding his
charges in North Carolina. However, the trial court denied Defendant’s motion regarding
Defendant’s reference to having been in jail. The trial court reasoned:

              I can’t sit here and pick and choose what the jury might find
      important in terms of proving the State’s allegations in [C]ount [1]. So if
      that is occurring at the same time, it’s not a prior bad act. It just goes to
      Ms. Jackson’s perception in terms of whether this allegation that the State
      has brought in [C]ount [1] . . . could, and from her perspective would
      actually be carried out.

              So -- I can’t sanitize [D]efendant’s statements just because they put
      them in some bad light. But they are not even going to hear any
      information as to whether that’s true or not. The important thing is in terms
      of me deciding, but would the jury find . . . [that] she’s feeling like he’s
      pretty serious about this and claiming he knows people that do it. So -- but
      again, that’s the jury’s role in terms of deciding what they believe was said
      or evaluating testimony. But I don’t think that falls in any kind of 404(b)
      situation.

                                   Motion to Dismiss

       Defendant also filed a motion to dismiss the indictment prior to trial. A copy of
the motion to dismiss is not included in the appellate record. However, at the pretrial
hearing, the trial court stated, “Now, I have before me a motion to dismiss for Brady
violations.” Defense counsel then explained that the basis of the motion was three
jailhouse phone calls that the defense “came into possession of last week[.]” He stated
that two of the calls were from September 2017 and that one call was from January 2018.
                                           -3-
Defense counsel said, “Last week as I was doing my preparation because I came onto this
case late, I noticed something that I thought we needed to review the [jailhouse phone
calls].” Counsel acknowledged that the defense was able to “get [the jailhouse phone
calls] from the sheriff’s department.” Defense counsel argued:

               For the Brady analysis, we just need to prove that there is something
       potentially exculpatory and material to the defense. I think the statement
       that I included in the motion is clearly that.

              The woman that we believe is [Ms.] Jackson says they’ve gotten an
       innocent man in jail, talks about mental health issues, drug issues, talks
       about being threaten[ed] by the DA’s office.

              ....

              Those statements are all arguably a form of recantation and
       otherwise would go to credibility. And whether or not [the prosecutor] or
       anyone who was working on this case with him had possession of that is
       also not relevant of this case law because [the sheriff’s department] is a
       state actor. And so Brady requires the State affirmatively seek out
       exculpatory material.

Defense counsel explained that the jail call from January 2018 was “with the woman we
believe to be [Defendant’s daughter].”

        The prosecutor stated that he did not know about any jailhouse phone calls until he
received Defendant’s motion to dismiss the night before trial, and defense counsel
acknowledged that the prosecutor was unaware of the jailhouse phone calls prior to his
filing the motion to dismiss. The prosecutor explained to the court that jailhouse phone
calls “are equally available to both sides[.]”

       The trial court questioned defense counsel, “[H]ow are you prejudiced since you
now have them and potentially can cross examine the . . . witnesses about the
statements?” Defense counsel responded, “It’s the timing.” Counsel acknowledged that,
“even if we got [the jailhouse phone calls] late, we could still maybe use that to impeach
[the witnesses]” but explained:

              It raises multiple issues of the testimony. It raises issues with
       potentially getting mental health records. It raises issues where she makes
       this statement about her ex-husband telling her to say things, which
       involves another potential defense witness who we wouldn’t have even
                                           -4-
      thought to interview[] until we heard that statement. So we never had the
      opportunity to try to track that guy down, to try to interview him about that.

      The trial court then asked if Defendant wanted a continuance, but defense counsel
responded that he did not. The prosecutor asserted:

              Further, [defense counsel] and I had a conversation back in the fall,
      I’ve got specific notes about it, where Ms. Jackson and [defense counsel]
      had a conversation and Ms. Jackson was referencing a lot of this stuff that’s
      referenced in this motion. So . . . they were very aware of from a very early
      time in this case. I can’t help it that they decided to pull [jailhouse phone]
      calls, a week, two weeks ago[.]”

       Reading from his file notes, the prosecutor said, “October 5th, 2017, [defense
counsel] advises me that Ms. Jackson advised her that this did not happen. That she was
not a willing prosecutor[,] that she had panic attack[s] and PTSD[,] and she was
previous[ly] married. Those were my notes from that October 5th, 2017, conversation.”
Defense counsel then agreed that the defense was aware of the information referenced in
the prosecutor’s notes in October 2017 and acknowledged that the defense did not seek a
subpoena for Ms. Jackson’s medical records thereafter.

       The trial court denied Defendant’s motion to dismiss at the conclusion of the
hearing. The trial court found that Defendant failed to establish that it was Ms. Jackson
and Defendant’s daughter, C. J., speaking with him in the jailhouse phone calls, that the
jailhouse phone calls were available to the defense and were in the possession of the
defense prior to trial, and that Defendant failed to show that the sheriff’s department
knew of the contents of the jailhouse phone calls. The court reasoned:

             I’ve not gotten proof here today that the sheriff’s department reviews
      any [jailhouse phone] calls at all. I know they are recorded and some
      people listen to them and some don’t, in terms of [prosecutors] and now
      defense attorneys do as well if you discover them. But there is no
      information that I have here today that anyone with the sheriff’s department
      reviewed them to just blanketly say the District Attorney’s [O]ffice is
      responsible for knowing any and everything that may be exculpatory from
      tens of thousands of [jailhouse phone] calls in any and every case is beyond
      what I contemplate as [a] Brady situation.

             ....



                                          -5-
              Secondly, the defense is now aware of it, doesn’t want a
       continuance. Can go here in a few minutes and speak with Ms. Jackson
       further about these phone calls. And I don’t know how -- maybe it isn’t
       her, maybe somebody is on the phone with -- [Defendant]?

              ....

              Maybe somebody is on the phone with [Defendant] imitating Ms.
       Jackson or the daughter. So you are aware of it. Don’t want a continuance.
       I don’t think there has been a Brady violation, so I will deny this motion.

                                           Trial

       At trial, Sara Jackson testified that she first married Defendant in June 1994. Ms.
Jackson explained that they divorced in November 2004 but remarried in September
2015. Ms. Jackson said that she divorced Defendant for the second time in February
2018. She explained that she had four children with Defendant. She said that, after
divorcing Defendant the first time, she married Frederick DeCotten, and they had one
child together. She and Mr. DeCotten divorced in 2010.

        Ms. Jackson recalled that, on the evening of July 16, 2016, she, Defendant, and
their son, F.J., spent the night on some property she purchased in Cheatham County. She
testified that, in the early afternoon of the following day, they went to visit Defendant’s
mother, who lived in an apartment at Trevecca Towers in Nashville. She said that
Defendant drove them to Nashville in their Chevrolet Astro van. Ms. Jackson explained
that she wanted to go to Trevecca Towers because two of her children with Defendant
and her child with Mr. DeCotten were there. She explained that her daughter, C.J., had
driven herself and the other children to Trevecca Towers the previous day in Ms.
Jackson’s Chevrolet Cruze.

       Ms. Jackson testified that, before they left for Nashville, Defendant “took meth
with a needle.” She stated:

               I was trying to be as sweet and nice and calm as possible because I --
       [F.J.] and I wanted so badly to get to Trevecca so we could get the other
       children. And we -- I didn’t have a plan that we knew exact, but we had
       planned on -- I had my keys and a little money, then a food card in my
       purse there. And my hopes [were] that we were going to get into the car
       and leave without telling him and go back to Indiana[,] [where Ms. Jackson
       was originally from].

                                           -6-
       She stated that she did not tell Defendant that she wanted to leave because he
would not let her leave. She explained that her keys, some cash, and EBT food card were
at Trevecca Towers, where she had hidden the items from Defendant. Ms. Jackson stated
that, during the drive to Nashville, she tried to be “amicable” and “happy” but that
Defendant got mad and “squeez[ed] her wrist[.]” She recalled that she was sitting in the
back seat with F.J. at the time. When Defendant squeezed her wrist, she “started
screaming[,]” and F.J. held her hand and said, “It’s okay, mom, it’s okay.”

       When they arrived at Trevecca Towers, Ms. Jackson ran into the apartment. Ms.
Jackson recalled that, when she got inside the apartment, she told her children, “[G]uys,
guys, we got to make it quick, we got to get my purse. If [Defendant] comes up here,
don’t tell him where it is. Do not give it to him, whatever you do, please don’t give it to
him.” Ms. Jackson testified that, when Defendant entered the apartment, he knew
“something was up.” Ms. Jackson stated that C.J. was holding her purse, and Defendant
“started running after her” and then began “running after [Ms. Jackson].” Ms. Jackson
explained that Defendant lunged at her, grabbed her wrist, and “bumped” her in the chest
where she had been injured previously. She said that she was “scared to death” and that
it “hurt a lot.” She explained that Defendant was over six feet tall, weighed about 200
pounds, and was “[r]eally in shape.” Ms. Jackson, however, was five feet, two inches tall
and weighed just over 100 pounds.

      Ms. Jackson testified that C.J. tried to “grab [Defendant] off of [her].” Defendant
then pushed C.J., grabbed Ms. Jackson’s purse, and “took off” because C.J. ran
downstairs to call the police. Ms. Jackson explained that her purse contained her cell
phone and the EBT card and that Defendant left the apartment complex in her Chevrolet
Cruze. She said that, soon after Defendant left, officers and a paramedic arrived at the
scene. Based on what Ms. Jackson told the officers, warrants were taken out against
Defendant. Ms. Jackson stated that she also obtained an order of protection against
Defendant.

       Ms. Jackson testified that she and her children returned to Defendant’s mother’s
residence, and they stayed with her for several nights. Ms. Jackson said that she called
Defendant on his cell phone and “begged” him to return her car. At that time, Defendant
demanded to know if Ms. Jackson had filed a police report. When she told Defendant
that there were outstanding warrants against him based on the assault, he said, “You drop
those charges, or I will kill you.” Ms. Jackson recalled that Defendant dropped off her
car a day or two later and took the van.

       Ms. Jackson explained that Mr. DeCotten paid for a hotel room where she and the
children stayed for several nights after leaving Trevecca Towers. Ms. Jackson recalled
that, while in the hotel lobby, a woman named Melanie noticed Ms. Jackson’s injuries
                                           -7-
and asked her about them. Ms. Jackson explained what had happened, and Melanie said,
“I tell you what, why don’t you come stay with us for a couple of weeks, we will see if
we can get you guys on your feet . . . we live in Alabama.” Ms. Jackson stated that she
and the children stayed in Alabama with Melanie for two weeks. She testified that, when
school was about to start, Melanie got them a hotel room so that they could return to
Tennessee.

       Ms. Jackson acknowledged that she talked to Defendant by phone when she
returned to Tennessee. Ms. Jackson explained that, when she spoke to him, Defendant
“adamantly” wanted her to “drop the charges.” He advised her not to come to court and
“came up with all kinds of scenarios [about] what to say.” Ms. Jackson stated that
Defendant made it clear that this was what she had to do, and she believed him.

       She explained that Defendant worked as a landscape architect and that one of his
clients was a couple that lived in Bellevue. Defendant gave Ms. Jackson their phone
number, and Ms. Jackson eventually met with the couple. She recalled:

             They wanted to help us. And they said, you can come and live --
      they had a really big house. And they said, “you can come and live with us
      on our third floor,” so that you can get the school -- the kids on the first day
      of school, we can -- you know we will figure things out as it goes. But we
      can give them their normalcy, keep them in school, not have any changes in
      that regard.

       Ms. Jackson recalled that, late on August 28 or early on August 29, 2016, she
spoke to Defendant on her cell phone while she was sitting in her Chevrolet Cruze.
Defendant told Ms. Jackson that, if she “didn’t drop the charges, he would kill her.”
Defendant said, “I’ve been in jail and . . . the worst thing you can do is mess with
someone’s time[.]” Defendant threatened to put a bomb in her car and said that either he
would do it or that he would get another inmate to “do [a] trade[.]” Ms. Jackson testified
that she believed Defendant would do as he threatened. Ms. Jackson testified that, later
in the day on August 29, she and C.J. were in the car driving to a store when they heard
“something underneath the car[.]” Ms. Jackson continued:

             I just was convinced at that moment there was [a] bomb underneath
      my car, I didn’t know. And I told [C.J.] and she said mom, we got to call
      the police. And so we called the police, we waited, we waited and they
      came and we asked them to please just look at the car and they did.

Ms. Jackson explained that officers took out new warrants for Defendant after this
incident.
                                           -8-
       On cross-examination, Ms. Jackson said that, before going to Nashville on July 17,
Defendant told her he took methamphetamine that morning. The following colloquy took
place:

             Q. That’s fine. So at this point you’re upset because [Defendant’s]
      using methamphetamine, but you also don’t drive his car, so knowing that
      he had just used these illegal drugs, you still chose to let him drive you and
      your son to Nashville?

              A. Because he had just attacked me and I was petrified. I was
      petrified, I wasn’t thinking clearly.

             Q. He attacked you before you left . . . that morning?

             A. Yes, ma’am.

             ....

             [A.] He hit me in my eye so hard that I had, for about two weeks, a
      super black eye. He hit me here so hard that it popped this bone out and he
      chipped my tooth.

       Ms. Jackson denied that she tripped and fell while running into the apartment at
Trevecca Towers. Ms. Jackson recalled that, when Defendant entered the apartment, he
was “like a lunatic” and “scary.” Ms. Jackson agreed that Defendant became so upset
that he grabbed her wrist and side and pushed her in the chest, causing her pain. She said
that when C.J. ran out of the apartment looking for a phone to call police, Defendant fled
the apartment complex in Ms. Jackson’s car. When the police arrived, they offered to
take Ms. Jackson to a shelter, but she refused. Ms. Jackson explained, “I declined it
because my children have been through so much trauma.”

       Ms. Jackson agreed that, after taking out the order of protection, she continued to
speak to Defendant over the phone. She said that Defendant called her, and she called
him. She stated that, by August 28-29, 2016, the order of protection had been granted.
She agreed that she continued to have communication with Defendant after August 29,
when she took out new charges against him. She stated, “He called me from time to time
and I called him from time to time.” She agreed that she called Defendant on her
birthday, and he suggested that she come to North Carolina to see him. He bought her a
plane ticket, and she visited him there. She returned to North Carolina for Thanksgiving
with their children. She stated that she went to North Carolina because she “always had
that hope.” She testified, “I wanted so badly to have that family. And he had this control
                                          -9-
over me, it’s really hard to explain, especially now that I’ve been away from him for so
long, it’s hard for me to understand that person too.”

        Ms. Jackson said that Defendant injured her chest using the palm of his hand. She
said that, when Defendant hit her in the chest again at Trevecca Towers, “it just hurt it so
much more.” She recalled that, when officers arrived at Trevecca Towers, they saw her
eye. She explained that the prior assault happened in Cheatham County; the officers said
that “they wanted to help [her] with that but they said it’s not their jurisdiction[.]”

       F.J. testified that he was seventeen years old and that Defendant was his father and
Ms. Jackson was his mother. He testified that, in July 2016, his parents owned some
property in Cheatham County. He said that there was a dilapidated shack on the property
that Defendant was attempting to repair. F.J. said that he spent the night at the property
on the evening of July 16, 2016, with his parents. He recalled that Defendant became
“upset” with Ms. Jackson that night. He stated, “[Defendant] made like a motion towards
[Ms. Jackson], [and] I got in between. I wasn’t touched or anything like that, although
[Defendant] was definitely intent on like, you know, straightening my mother up, I
suppose you could say.” He stated that he urged Defendant to “calm down.”

        F.J. testified that he slept in the van that night, while Defendant and Ms. Jackson
slept in the shack. He recalled that they drove to Trevecca Towers in Nashville the
following day. He said that, as Defendant drove the van, he seemed to grow “more and
more belligerent” towards Ms. Jackson. Defendant became aggressive towards Ms.
Jackson, started to yell at her, and squeezed her hand. F.J. testified that Ms. Jackson
became distressed, and he tried to comfort her. He said that, as soon as they arrived at
Trevecca Towers, Ms. Jackson ran out of the van and into the apartment. A few minutes
later, Defendant “rushed in the door” of the apartment and began looking for the keys to
the Chevrolet Cruze and the EBT card. F.J. testified that his sister, C.J., stood in
Defendant’s way, and Defendant shoved her. C.J. then tried to grab Defendant’s leg, but
he “kicked her off” and continued to the bedroom where Ms. Jackson was located. Ms.
Jackson ran out of the bedroom and lay down on an air mattress in the living area of the
apartment. F.J. stated that “[Defendant] ran out and he was grabbing her. [Defendant]
wanted to find the food card and keys.” He said that Defendant shook Ms. Jackson and
demanded to know where the car keys and EBT card were located. F.J. said that C.J.
eventually gave Defendant the car keys and the EBT card so that Defendant would not
further “harass” Ms. Jackson. He recalled that C.J. called the police but that Defendant
left the scene before police arrived. He explained that, because Defendant took Ms.
Jackson’s car, they spent the night at Trevecca Towers.

      On cross-examination, F.J. explained that they went to the property in Cheatham
County because Defendant wanted to show them the repairs that Defendant had made to
                                           - 10 -
the building on the property. F.J. recalled that he was sitting in the back seat of the van
and that Ms. Jackson sat in the front with Defendant during the drive to Nashville. He
recalled that Ms. Jackson was “extremely distressed” and was crying. He said that she
“almost jumped out of the van on the interstate.” He denied seeing Ms. Jackson fall
when she got out of the van at Trevecca Towers. He described the incident inside the
apartment as “scary.”

       C.J. testified that she was eighteen years old and was the daughter of Ms. Jackson
and Defendant. She explained that her grandmother lived at Trevecca Towers and that
she spent the night at her grandmother’s apartment on July 16, 2016. Regarding the next
day, C.J. stated:

              [A]round noon, [Ms. Jackson] frantically came into the apartment
      nervous, scared. She was hiding our credit cards, money, food card, car
      keys, and said keep these safe, hidden. Moments after, [Defendant] comes
      in, storms in, yelling, tearing the apartment apart trying to look for the keys,
      credit cards and started to attack [Ms. Jackson].

             And I was really scared for [Ms. Jackson] because she said to not
      give him the belongings, but [Defendant] was really hurting her and she
      couldn’t defend herself. So I tried getting him off of her and failed to do
      so, so I gave him the credit cards and phone and -- credit cards and the car
      keys and he took them and then I went downstairs and called the police.

        C.J. testified that Defendant was on top of Ms. Jackson and that, when C.J. tried
to help her mom, Defendant pushed C.J. C.J. then tried to grab Defendant’s leg, but he
“kicked [her] off of his leg.” C.J. testified that she felt nervous and scared during the
entire incident. She said that there was no phone in the apartment, so she went
downstairs and borrowed a phone to call the police. C.J. stated that, before the police
arrived, Defendant left the scene, taking Ms. Jackson’s Chevrolet Cruze. After speaking
to police, she accompanied Ms. Jackson downtown to take out a warrant against
Defendant. She recalled that Ms. Jackson had a “bruised and kind of red mark on her
eye[.]”

        C.J. recalled that she and her siblings stayed with Ms. Jackson in a few hotels
before going to stay in Alabama for a couple of weeks. When they returned to
Tennessee, they stayed at a “bed-and-breakfast-type house,” where they “helped around
the house” in exchange for a place to stay. She said that, between July 17, 2016, and
August 29, 2016, she did not see Defendant. She recalled that, on August 29, she and
Ms. Jackson were in Ms. Jackson’s Chevrolet Cruze. As they pulled into a store parking
lot, they heard an odd noise coming from the car. C.J. said that “it sounded like there
                                           - 11 -
were rocks or something in the car.” She recalled that Ms. Jackson was “really scared
and said that she was scared that someone had done something to the car[.]” Ms. Jackson
called the police, and when officers arrived, they checked the car but did not find
anything.

       On cross-examination, C.J. said that Defendant was “enraged” when he entered
her grandmother’s apartment on July 17. She said that it was her idea to call the police
and denied that Ms. Jackson told her to do so. She agreed that she had contact with
Defendant after the incident and that she eventually went to North Carolina to be with
Defendant, along with her siblings and Ms. Jackson. She agreed that she had spoken with
Defendant one time since his arrest on the instant charges.

        Office David Smith with the Metro-Nashville Police Department (MNPD)
testified that he responded to Trevecca Towers on July 17, 2016, around 1:00 p.m. Once
there, he spoke to Ms. Jackson, whom he described as “extremely frantic” and “[v]ery
emotional.” Officer Smith said that Defendant left the scene before his arrival. Officer
Smith stated that, after speaking with Ms. Jackson and C.J., he accompanied them to
night court in order to take out a warrant against Defendant. He recalled seeing a large
prominent bruise under Ms. Jackson’s left eye. Officer Smith testified, however, that this
bruise was not the basis for the current charges, and he did not notice any additional
injuries to Ms. Jackson.

       Officer Doug Atwood of the MNPD testified that he responded to a call made by
Ms. Jackson on August 29, 2016. When he arrived at the store parking lot, Officer
Atwood spoke to Ms. Jackson and C.J. Ms. Jackson told Officer Atwood that she
received a call from Defendant and that he threatened her during the call. According to
Ms. Jackson, Defendant “threatened to put a bomb on her car if certain things were not
done to his satisfaction.” Ms. Jackson told Officer Atwood that Defendant had two
outstanding warrants for his arrest but that he was currently out of the state. Officer
Atwood and his sergeant looked at the exterior of Ms. Jackson’s Chevrolet Cruze and did
not see anything out of the ordinary on the car.

      Following deliberations, the jury found Defendant guilty of one count of coercion
of a witness, two counts of domestic assault, and one count of domestic assault with
physical contact.

                                       Sentencing

       At a sentencing hearing, the State introduced the presentence report into evidence.
Justin Bell testified that he worked as a detective in the narcotics task force at the
Transylvania County Sheriff’s Office in Transylvania County, North Carolina. Detective
                                          - 12 -
Bell stated that Defendant currently had the following charges pending in North Carolina:
possession of methamphetamine, possession of precursors necessary to manufacture
methamphetamine, and larceny.

      Ms. Jackson testified that she and her children had previously seen Defendant
making methamphetamine, both in Tennessee and in Indiana. She explained the lasting
damage Defendant’s physical and mental abuse had on her and their children. Ms.
Jackson asked that the trial court sentence Defendant “to the maximum.”

        On cross-examination, Ms. Jackson acknowledged that, after Defendant’s arrest,
she wrote him a letter while he was in custody awaiting trial. She agreed that, in the
letter, she gave Defendant the impression that she was “going to get back with him[.]”
She explained that this was because she was afraid of Defendant and due to the physical
and mental abuse she suffered. She stated that she had not written to Defendant or
spoken to him on the phone since his trial.

        Defendant made an allocution, in which he stated that he could comply with any
conditions of probation set by the court. Defendant explained that, while incarcerated, he
had attended many classes with the goal of bettering himself. He asked for leniency so
that he could continue to work and to support his children and his mother. Defendant
stated that he accepted responsibility for “the domestic violence and for the times that
[he] should have been more supportive and less temperamental[.]” He further stated that,
at least early in his incarceration, he had “amicable communications both written and by
phone with [his] children and [Ms. Jackson].” He said that he had “always been there for
[his] children” and that he “[stood] here knowing that [he was] one of the best dads on
the planet.”

       During argument, the State contended that Defendant was a Range II offender
based on his prior felony convictions as listed in its Notice of Enhanced Punishment filed
prior to trial. When questioned by the trial court, defense counsel conceded that
Defendant was a Range II offender. The trial court took the matter under advisement at
the conclusion of the hearing. The court subsequently entered a written order sentencing
Defendant, as a Range II multiple offender, to seven years for coercion of a witness in
Count 1; eleven months and twenty-nine days for domestic assault in both Count 2 and
Count 3; and six months for domestic assault with physical contact in Count 4. The trial
court ordered Counts 1, 2, and 4 to run concurrently but Count 3 to run consecutively to
Count 1, for a total effective sentence of seven years, eleven months and twenty-nine
days to serve in the Tennessee Department of Correction.

        Defendant filed a timely motion for new trial and an amended motion for new
trial, which the trial court denied after a hearing. This timely appeal follows.
                                          - 13 -
                                              II. Analysis

                                   Motion to Dismiss Indictment

        Defendant contends that the trial court erred in denying his “motion to dismiss and
[in failing to take] any remedial action based on multiple violations of Rule 16 [of the
Tennessee Rules of Criminal Procedure] and Brady v. Maryland[.]” Defendant asserts
that the State violated the requirements of Brady “and/or Rule 16” by failing to produce
the recorded jailhouse phone calls between Defendant and Ms. Jackson that were in the
possession of the Davidson County Sheriff’s Office and contained exculpatory and
favorable material for the defense.

       The State responds that it had no duty to provide evidence that was equally
available to Defendant and notes that federal courts have held that an inmate’s custodian
does not fall within the ambit of Brady. Finally, the State asserts that Defendant has not
included the jailhouse phone calls in the record, thereby preventing a determination of
whether the recordings were material.

                                                Rule 16

      Initially, we conclude that, to the extent Defendant relies on Rule 16 of the
Tennessee Rules of Criminal Procedure as a ground for relief, he has waived this issue.
The motion to dismiss is not included in the record on appeal,2 and it is otherwise unclear
from the record whether Defendant included a violation of Rule 16 as a basis for the
motion. Moreover, defense counsel’s argument at the hearing was based solely on Brady.

       It is well-settled that when a party seeks appellate review, it has a duty to prepare a
record which conveys a fair, accurate, and complete account of what transpired with
respect to the issues forming the basis of the appeal. See State v. Ballard, 855 S.W.2d
557, 561 (Tenn. 1993) (holding failure to include transcript precludes appellate review);
State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Oody, 823 S.W.2d 554, 559
(Tenn. Crim. App. 1991) (holding trial court’s ruling was presumed correct in the
absence of an adequate record on appeal). Where the record is incomplete, an appellate
court is precluded from considering the issue. See State v. Roberts, 755 S.W.2d 833, 836
(Tenn. Crim. App. 1988). This issue, therefore, has been waived.




        2
          By failing to include a copy of the motion to dismiss in the record, Defendant also risked waiver
of the Brady issue on this ground as well. However, we conclude that the transcript of the pretrial hearing
adequately preserved Defendant’s argument as it related to a Brady violation.
                                                  - 14 -
                                    Brady v. Maryland

       In Brady v. Maryland, the United States Supreme Court held that “suppression by
the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). In order to establish a
Brady violation, four prerequisites must be met:

       1. The defendant must have requested the information (unless the evidence
       is obviously exculpatory, in which case the State is bound to release the
       information whether requested or not);

       2. The State must have suppressed the information;

       3. The information must have been favorable to the accused; and

       4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). “The prosecution is not required to
disclose information that the accused already possesses or is able to obtain . . . or
information which is not possessed by or under the control of the prosecution or another
governmental agency.” State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992)
(citing State v. Caldwell, 656 S.W.2d 864, 897 (Tenn. Crim. App. 1983) and Banks v.
State, 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977)). The defendant must prove, by a
preponderance of the evidence, that a Brady violation has occurred. Edgin, 902 S.W.2d
at 389.

        In order to establish a Brady violation, the evidence need not be admissible; it only
needs to be favorable to the defendant. State v. Spurlock, 874 S.W.2d 602, 609 (Tenn.
Crim. App. 1993). Favorable evidence includes evidence that “provides some significant
aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story,
calls into question a material, although not indispensible, element of the prosecution’s
version of events, or challenges the credibility of a key prosecution witness.” Johnson v.
State, 38 S.W.3d 52, 56-57 (Tenn. 2001) (internal quotation marks omitted). As the
United States Supreme Court has recognized, “the prosecutor is responsible for ‘any
favorable evidence known to the others acting on the government’s behalf in the case,
including the police.’” Strickler v. Greene, 527 U.S. 263, 275 n. 12 (1999) (citing Kyles
v. Whitley, 514 U.S. 419, 437 (1995)). Evidence is material under Brady “only if there is
a reasonably probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682
(1985) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). A “reasonable
                                           - 15 -
probability” is “a probability sufficient to undermine the confidence in the outcome.” Id.
(internal quotation marks omitted).

        In this case, the trial court found that Defendant failed to establish that it was Ms.
Jackson and C.J. speaking with him in the jailhouse phone calls. We agree. Defendant
failed to authenticate and introduce into evidence the jailhouse phone calls at the pretrial
motion hearing. Because they were not authenticated and are not included in the record
on appeal, we are unable to conclude that the jailhouse phone calls were favorable to
Defendant or to determine their materiality under Brady. Because the record is
incomplete, we are precluded from considering the issue, see Roberts, 755 S.W.2d at 836,
and we presume that the trial court’s ruling was correct. Oody, 823 S.W.2d at 559.

       Waiver notwithstanding, the trial court found that the jailhouse phone calls were
equally available to the defense, and under Brady, the prosecution is not required to
disclose information that a defendant already possesses or is able to obtain. Marshall,
845 S.W.2d at 233. Moreover, Defendant failed to demonstrate that the sheriff’s
department knew of the contents of his jailhouse phone calls. See Strickler, 527 U.S. at
275 n. 12. Finally, Defendant was in the possession of the evidence prior to trial. In the
case of delayed disclosure of exculpatory evidence, a potential Brady violation may be
cured by the defendant’s failure to move for a continuance after receiving the
information, the defendant’s thorough cross-examination of the witness regarding the
evidence, or by the defendant’s failure to call or recall an available witness concerning
the exculpatory statements. State v. Caughron, 855 S.W.2d 526, 548 (Tenn. 1993) (citing
United States v. Ingraldi, 793 F.2d 408 (1st Cir. 1986)). In this case, the trial court
offered Defendant a continuance in order to cure any potential prejudice, but Defendant
declined. He cannot now complain that he was prejudiced because of his own failure to
take advantage of a method the trial court offered to correct the alleged Brady violation.
For all these reasons, Defendant is not entitled to relief based on this claim.

                                  Admission of Evidence

       Defendant asserts that the trial court erred by permitting the State to introduce
“impermissible and prejudicial evidence in contravention [of] Tennessee Rule of
Evidence 404(b).” Specifically, he argues that the trial court should have excluded, under
Rule 404(b), evidence from Ms. Jackson relating to acts of abuse that took place while
Defendant and Ms. Jackson were in the van on their way to Trevecca Towers on July 17,
2016; evidence of Defendant’s drug use; evidence regarding Defendant’s prior
incarceration; and testimony from Ms. Jackson that “she felt her situation to be an
ongoing abusive situation.” Defendant asserts that this evidence “had little or no bearing
on whether [Defendant] committed the charged offenses and could have easily been
sanitized by the trial court . . . but the trial court elected not to do so[.]” He further
                                            - 16 -
asserts that the trial court failed to follow the procedure outlined in Rule 404(b) before
admitting the evidence and that the evidence “invited the jury to convict [Defendant]
based on the assertion that he had abused Ms. Jackson both in the past and recently, so he
must have committed the charged offenses.”

       The State responds that Defendant “failed to object to most of the complained-of
evidence and, in fact, spent considerable time on cross-examination questioning Ms.
Jackson about it.” The State assets that most of Defendant’s claims are waived, noting
that Defendant did not raise most of his claims in his motion for new trial and that he
does not make a plain error argument. Finally, the State responds, as to the single claim
preserved for review, that the trial court properly found that the evidence was relevant
and not unduly prejudicial.

                                          Waiver

        Initially, we agree with the State that Defendant has waived all claims except for
his claim that the trial court erred in admitting the portion of his statement to Ms. Jackson
about his prior incarceration. In his motion for new trial, Defendant alleged:

              The Court erred in denying [Defendant’s] Motion in Limine #3 to
       exclude a portion of an alleged threat made to [Ms. Jackson] on August 29,
       2016. The part of [Defendant’s] alleged bomb threat where he stated that
       he “had been in jail and he knew people who could do this” is a reference to
       prior bad acts and prior convictions and should have been excluded under
       Rule 404(b).

        Defendant failed to include any of the additional claims he now raises under Rule
404(b) in his motion for new trial. As a result, Defendant has waived our consideration
of those claims. Tenn. R. App. P. 3(e) (providing that in “all cases tried by a jury, no
issue presented for review shall be predicated upon . . . [a] ground upon which a new trial
is sought, unless the same was specifically stated in a motion for a new trial; otherwise
such issues will be treated as waived”). Moreover, Defendant does not argue that he is
entitled to plain error relief on those claims. See Tenn. R. App. P. 36(b).

                                        Rule 404(b)

       Rule 404(b) of the Tennessee Rules of Evidence provides:

             Evidence of other crimes, wrongs, or acts is not admissible to prove
       the character of a person in order to show action in conformity with the

                                           - 17 -
       character trait. It may, however, be admissible for other purposes. The
       conditions which must be satisfied before allowing such evidence are:

              (1) The court upon request must hold a hearing outside the
              jury’s presence;

              (2) The court must determine that a material issue exists other
              than conduct conforming with a character trait and must upon
              request state on the record the material issue, the ruling, and
              the reasons for admitting the evidence;

              (3) The court must find proof of the other crime, wrong, or
              act to be clear and convincing; and

              (4) The court must exclude the evidence if its probative value
              is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b); see also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005);
State v. Parton, 694 S.W.2d 299, 302 (Tenn. 1985). Rule 404(b) is generally one of
exclusion, but exceptions to the rule may occur when the evidence of the otherwise
inadmissible conduct is offered to prove the motive of the defendant, identity, intent, the
absence of mistake or accident, opportunity, or a common scheme or plan. State v.
Toliver, 117 S.W.3d 216, 230 (Tenn. 2003); State v. McCary, 119 S.W.3d 226, 243
(Tenn. Crim. App. 2003). “In addition to these exceptions, evidence of other acts may be
admitted to provide the jury with necessary contextual background.” State v.
Montgomery, 350 S.W.3d 573, 583 (Tenn. Crim. App. 2011) (citing Gilliland, 22 S.W.3d
at 272); see also NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE § 4.04[13] (6th
ed. 2011) (evidence admissible to tell the “complete story”).

       When a trial court makes an evidentiary ruling, the appropriate standard of review
on direct appeal is “whether the record clearly demonstrates that the trial court abused its
discretion” in ruling on the admissibility of the evidence. State v. McCaleb, 582 S.W.3d
179, 186 (Tenn. 2019) (citing Regions Bank v. Thomas, 532 S.W.3d 330, 336 (Tenn.
2017); State v. Davis, 466 S.W.3d 49, 61 (Tenn. 2015)). In McCaleb, our supreme court
explained:

              We emphasize that the abuse of discretion standard of review does
       not permit an appellate court to substitute its judgment for that of the trial
       court. State v. Harbison, 539 S.W.3d 149, 159 (Tenn. 2018). Rather,
       “[b]ecause, by their very nature, discretionary decisions involve a choice
       among acceptable alternatives, reviewing courts will not second-guess a
                                           - 18 -
       trial court’s exercise of its discretion simply because the trial court chose an
       alternative that the appellate courts would not have chosen.” White v.
       Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999). Accordingly,
       if the reviewing court determines that “reasonable minds can disagree with
       the propriety of the decision,” the decision should be affirmed. Harbison,
       539 S.W.3d at 159.

Id.

        In this case, the trial court held a hearing prior to the start of Defendant’s trial
regarding his motion to exclude certain evidence under Rule 404(b). Defendant did not
deny that he had been in jail previously or that he had mentioned his prior incarceration
while speaking to Ms. Jackson on the phone on August 29, 2016. Rather, he argued that
his “statement that [he] had been in jail and knew people who could [put a bomb in Ms.
Jackson’s car] [wa]s not necessary to prove the State’s elements of coercion.” In denying
the motion to exclude Defendant’s reference to his prior incarceration under Rule 404(b),
the trial court found that the evidence went to “Ms. Jackson’s perception in terms of
whether this allegation that the State has brought in [C]ount [1] . . . could, and from her
perspective would actually be carried out.” We agree that Defendant’s statement that he
had been previously incarcerated and therefore knew people who could put a bomb in
Ms. Jackson’s car was an important part of the State’s proof; it was highly probative of
Defendant’s intent to coerce Ms. Jackson to drop the charges against him (Count 1) and
of whether Ms. Jackson’s fear of Defendant’s threat was reasonable (Count 2). Because
the record does not clearly demonstrate that the trial court abused its discretion,
Defendant is not entitled to relief. See id.

                                Sufficiency of the Evidence

       Defendant argues that the evidence adduced at trial was insufficient to support his
convictions for coercion of a witness in Count 1 and for domestic assault in Count 2.
Regarding Count 2, he contends that the State’s proof “rested solely on the impeached
testimony of a single witness” and that Defendant was never in the physical proximity of
Ms. Jackson on August 29, 2016. Defendant asserts that Ms. Jackson was never in
imminent fear of Defendant’s threat of a bomb in her car “because he was never in her
presence and there was no immediacy to the threat based on the phone call.” Defendant
notes that Ms. Jackson “elected to wait several hours and then drive her vehicle
notwithstanding the alleged threat that was made,” which he argues “further undercut[s]
both the supposed imminence of the threat and her fear of [Defendant’s] conduct.” As
for Defendant’s conviction for coercion of a witness in Count 1, he argues that Ms.
Jackson’s testimony was “muddled and confused,” and she was impeached on cross-
examination. Defendant argues that there were no other parties to Defendant’s phone
                                            - 19 -
call, no recording of the call, and no proof from Ms. Jackson’s cell phone to establish that
the call at issue was made. The State responds that the evidence is sufficient to support
Defendant’s convictions.

        Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

                                  Coercion of a Witness

        As charged in this case, “[a] person commits an offense who, by means of
coercion, influences or attempts to influence a witness or prospective witness in an
official proceeding with intent to influence the witness to . . . [e]lude legal process
summoning the witness to testify or supply evidence[.]” Tenn. Code Ann. § 39-16-
507(a)(3) (2016). Further, “coercion” is statutorily defined as “a threat, however
communicated, to . . . [c]ommit any offense.” Tenn. Code Ann. § 39-11-106(a)(3)(A);
State v. Paul O. Dickens, Sr., No. M2005-00571-CCA-R3-CD, 2006 WL 359664, at *6
(Tenn. Crim. App. Feb. 15, 2006), perm. app. denied (Tenn. June 26, 2006).

       When viewed in the light most favorable to the State, we conclude that the
evidence was sufficient to support Defendant’s conviction for coercion of a witness in
Count 1. Following the domestic assault on July 17, 2016, police were called, and Ms.
Jackson and C.J. took out warrants against Defendant. In a subsequent phone call, Ms.
Jackson told Defendant about the outstanding warrants. Defendant “adamantly” wanted
Ms. Jackson to “drop the charges”; he advised her not to come to court and “came up
with all kinds of scenarios [about] what to say.” Then, late in the evening on August 28
                                           - 20 -
or early on August 29, 2016, Ms. Jackson spoke to Defendant while sitting in her car.
During the call, Defendant threatened to kill Ms. Jackson by putting a bomb in her car if
she did not “drop the charges.” Defendant said that either he would do it or that he could
get another inmate to “do [a] trade[.]” From this, the jury could reasonably infer that
Defendant threatened to kill Ms. Jackson in an attempt to influence Ms. Jackson, as a
prospective witness in the domestic assault case, to avoid testifying against him.
Accordingly, we conclude that any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. The evidence is sufficient to support
Defendant’s conviction for coercion of a witness.

                                    Domestic Assault

       “A person commits domestic assault who commits an assault as defined in
[Tennessee Code Annotated section] 39-13-101 against a domestic abuse victim.” Tenn.
Code Ann. § 39-13-111(b) (2016). As relevant here, “domestic abuse victim” means an
adult who is a current or former spouse. Tenn. Code Ann. § 39-13-111(a)(1) (2016). A
person commits an assault who “[i]ntentionally or knowingly causes another to
reasonably fear imminent bodily injury[.]” Tenn. Code Ann. § 39-13-101(a)(2) (2016).
“[A] person acts intentionally with respect to the nature of the conduct or to a result of
the conduct when it is the person’s conscious objective or desire to engage in the conduct
or cause the result[.]” Tenn. Code Ann. § 39-11-106(a)(18) (2016). A person acts
“knowingly” if that person acts with an awareness: (1) that his or her conduct is of a
particular nature; or (2) that a particular circumstance exists; or (3) that the conduct was
reasonably certain to cause the result. See Tenn. Code Ann. § 39-11-106(a)(20) (2016).

        The Tennessee Supreme Court has previously quoted with approval the following
definition of “imminent”:

              Near at hand; mediate rather than immediate; close rather than
       touching; impending; on the point of happening; threatening; menacing;
       perilous. Something which is threatening to happen at once, something
       close at hand, something to happen upon the instant, close although not yet
       touching, and on the point of happening.

State v. Payne, 7 S.W.3d 25, 28 (Tenn. 1999) (quoting BLACK’S LAW DICTIONARY 750
(6th ed. 1990)). Based upon this definition, the court explained that a person “must be
placed in a reasonable probability of danger as opposed to a mere possibility of danger”
for the threat of death or serious bodily injury to be “imminent” under the reckless
endangerment statute. Id. (citing State v. Fox, 947 S.W.2d 865, 866 (Tenn. Crim. App.
1996)).

                                           - 21 -
        A conviction under the domestic assault statute, however, does not require that a
defendant actually place another in imminent danger of serious bodily injury; instead the
statute proscribes “causing another to reasonably fear imminent bodily injury.” Tenn.
Code Ann. § 39-13-101(a)(2) (2016). In discussing the element of fear in the assault
statute, this court has held that “[t]he element of ‘fear’ is satisfied if the circumstances of
the incident, within reason and common experience, are of such a nature as to cause a
person to reasonably fear imminent bodily injury” and that “the apprehension of
imminent bodily harm may be inferred from the conduct of the victim following the
[alleged] assault.” State v. Christopher Carter, No. W2006-02124-CCA-R3-CD, 2007
WL 3391385, at *5 (Tenn. Crim. App. Nov. 15, 2007) (quoting State v. Gregory
Whitfield, No. 02C01-9706-CR-00226, 1998 WL 227776, at *2 (Tenn. Crim. App. May
8, 1998), perm. app denied (Tenn. Dec. 7, 1998)), perm. app denied (Tenn. Apr. 7, 2008);
State v. Terrance Dixon, No. W2011-01432-CCA-R3-CD, 2012 WL 1656721, at *6
(Tenn. Crim. App. May 10, 2012) (quoting Gregory Whitfield, 1998 WL 227776, at *2).

        In this case, even when viewed in the light most favorable to the State, we cannot
conclude that sufficient evidence was presented to prove beyond a reasonable doubt that
Defendant is guilty of domestic assault in Count 2 because the State failed to establish
that the victim reasonably feared imminent bodily injury. Ms. Jackson did not testify that
she feared imminent bodily injury, and we are unable to infer that fear from her actions
following Defendant’s threat. Ms. Jackson testified that she was sitting in her car
speaking to Defendant on the phone when Defendant threatened kill her by putting a
bomb in her car if she did not drop the charges against him. Ms. Jackson did not call the
police after this threat and, several hours later, drove herself and her daughter to a store in
her car. Cf. State v. Tommy Arwood, Jr., No. 01CO1-9505-CC-00159, 1996 WL 274996,
at *3 (Tenn. Crim. App. May 24, 1996) (holding the evidence was sufficient to find the
victim was fearful of imminent bodily injury when he attempted to defend himself and
called police after the defendant left), no perm. app. filed. Because the proof does not
show the essential element that the victim feared imminent bodily injury, we reverse
Defendant’s conviction for domestic assault in Count 2.3

                                              Sentencing

        Defendant asserts that the trial court erred by finding that he was a Range II
multiple offender. He argues that the State failed to present proof that the offenses the
trial court relied on to find that he was a Range II offender were committed on different
dates. Defendant contends that he is entitled to resentencing as a Range I standard
        3
          Reversal of the conviction in Count 2 will not affect Defendant’s total effective sentence
because the trial court ordered the sentence for Count 2 to run concurrently with the sentence in Count 1,
coercion of a witness.

                                                 - 22 -
offender. The State responds that the record supports the trial court’s finding that
Defendant is a Range II multiple offender.

        Initially, we note that Defendant also asserts in the heading of this issue in his
brief that the trial court erred in determining the length of his sentence and by imposing
consecutive sentencing. However, Defendant makes no argument in support of these
claims. Accordingly, these issues are waived for appellate review. See Tenn. Ct. Crim.
App. R. 10(b).

        A defendant may appeal from the length, range, manner of service, or consecutive
alignment of a sentence imposed by the trial court. Tenn. Code Ann. § 40-35-401 (2018).
On appeal, a defendant bears the burden of showing that the sentence is improper. Tenn.
Code Ann. § 40-35-401 (2018), Sent’g Comm’n Cmts. When the record establishes that
the trial court imposed a sentence within the appropriate range that reflects a “proper
application of the purposes and principles of our Sentencing Act,” this court reviews the
trial court’s sentencing decision under an abuse of discretion standard with a presumption
of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012).

       The standard of review applicable to the length of sentences adopted in Bise has
now been applied to the trial court’s determination of an offender’s range classification.
State v. Laylon Ward, Jr., No. W2017-00736-CCA-R3-CD, 2018 WL 1091792, at *2
(Tenn. Crim. App. Feb. 23, 2018) (citing State v. Joseph Cordell Brewer, III, No.
W2014-01347-CCA-R3-CD, 2015 WL 4060103, at *7-8 (Tenn. Crim. App. June 1,
2015)). Thus, if the trial court’s determination that Defendant was a Range II multiple
offender is supported by the record and reflects that the trial court properly applied the
purposes and principles of sentencing, the trial court’s decision is reviewed for an abuse
of discretion, with a presumption of reasonableness. The State bears the burden of
establishing beyond a reasonable doubt that the defendant possesses the requisite number
of prior felonies to qualify for a particular range. State v. Jones, 901 S.W.2d 393, 397
(Tenn. Crim. App. 1995). Pursuant to Tennessee Code Annotated section 40-35-
106(a)(1), to properly sentence Defendant as a Range II multiple offender for the Class D
felony conviction for coercion of a witness, the State would have to prove beyond a
reasonable doubt that Defendant had received “[a] minimum of two (2) but not more than
four (4) prior felony convictions within the conviction class, a higher class, or within the
next two (2) lower felony classes[.]” Tenn. Code Ann. § 40-35-106(a)(1) (2018).

       In this case, the presentence report indicates that Defendant was convicted of two
counts of identity theft, a Class D felony, and one count of theft over $500, a Class E
felony, in Williamson County Circuit Court on November 17, 2009. The presentence
report reflects an offense date of October 7, 2008, for the identity theft convictions and
November 5, 2008, for the theft conviction. Thus, the record supports the trial court’s
                                           - 23 -
determination that Defendant had at least two prior convictions “within the conviction
class, a higher class, or within the next two (2) lower felony classes” and that Defendant
was a Range II offender.

        Defendant asserts on appeal that he committed the prior offenses within the same
twenty-four-hour period and that, as such, his convictions fall under the merger rule and
constitute one conviction for the purpose of determining prior convictions. See Tenn.
Code Ann. § 40-35-106(b)(4) (2018). However, a criminal defendant has the burden of
proving that his crimes were performed within a twenty-four-hour period so as to fall
under the merger rule. See State v. Kenneth Edward Watts, No. E2010-00553-CCA-R3-
CD, 2011 WL 5517000, at *7 (Tenn. Crim. App. Nov. 8, 2011); Tenn. Code Ann. § 40-
35-106(b)(4). Not only did Defendant fail to establish that he committed the offenses
within the same twenty-four-hour period, but he agreed with the State that he was a
Range II offender at the sentencing hearing. Defendant has not established that the trial
court abused its discretion in sentencing him as a Range II multiple offender. He is not
entitled to relief.

                                     Flight Instruction

       Finally, Defendant contends that the trial court erred when it erroneously granted
the State’s request to instruct the jury on flight when there was insufficient proof in the
record to support such an instruction. Defendant argues that the State presented no proof
to suggest that Defendant was hiding out or evading prosecution for his assaults on Ms.
Jackson and C.J. The State responds that Defendant fled his mother’s home in Nashville
before police arrived and then went to North Carolina. It argues that the proof
established that Defendant was concerned about being charged with assault, so much so
that he threatened to kill Ms. Jackson if she continued prosecuting the case. Accordingly,
the State argues that there was sufficient proof to find that Defendant left Tennessee to
evade prosecution, and the trial court’s flight instruction was not error.

       “In order for a trial court to charge the jury on flight as an inference of guilt, there
must be sufficient evidence to support such instruction.” State v. Berry, 141 S.W.3d 549,
588 (Tenn. 2004). There is sufficient evidence to justify a flight instruction when the
State has established “both a leaving the scene of the difficulty and a subsequent hiding
out, evasion, or concealment in the community, or a leaving of the community for parts
unknown.” State v. Whittenmeir, 725 S.W.2d 686, 688 (Tenn. Crim. App. 1986) (internal
quotation marks omitted). The State may satisfy the subsequent hiding out, evasion, or
concealment requirement by presenting proof from which a jury might infer that the
defendant committed such acts. State v. Scotty Dale Staggs, No. M2011-01675-CCA-
R3-CD, 2013 WL 2722286, at *18 (Tenn. Crim. App. June 12, 2013) (citing State v.
Terrance Wilks, No. W1999-00279-CCA-R3-CD, 1999 WL 1097832, at *4 (Tenn. Crim.
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App. Nov. 22, 1999)). This court has previously explained that “[t]he law makes no nice
or refined distinction as to the manner or method of a flight; it may be open, or it may be
a hurried or concealed departure, or it may be a concealment within the jurisdiction.”
Whittenmeir, 725 S.W.2d at 688 (quoting Rogers v. State, 455 S.W.2d 182, 187 (Tenn.
Crim. App. 1970)). It is proper for the trial court to instruct the jury on flight when the
issue has been raised by the proof. See State v. Kendricks, 947 S.W.2d 875, 885-86
(Tenn. Crim. App. 1996).

       Here, the trial court’s instruction on flight was proper. The proof at trial
established that, on July 17, 2016, Defendant committed domestic assault against Ms.
Jackson and C.J. Ms. Jackson testified that, because C.J. ran downstairs to call the
police, Defendant “took off” and fled the scene in Ms. Jackson’s car. After learning from
Ms. Jackson that there were outstanding warrants for his arrest, Defendant left the state
and went to North Carolina, where he was not arrested until May 2017. This evidence
supported the trial court’s instruction on flight, and Defendant is not entitled to relief.

                                     III. Conclusion

      Based on the foregoing, we reverse and dismiss Defendant’s conviction for
domestic assault in Count 2 but affirm the judgments of conviction in Counts 1, 3, and 4.




                                             ____________________________________
                                             ROBERT L. HOLLOWAY, JR., JUDGE




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