State of Tennessee v. John Bassett - Murder Conviction Appeal

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE October 29, 2025 Session STATE OF TENNESSEE v. JOH N BASSETT Appeal from the Crim inal Court for Knox County No. 119852 G. Scott Green, Ju dge No. E2024-01681 -CCA-R3-CD The Defendant, John Bassett, appeals from his conviction for first degree preme ditated murder, for which he received a life sentence without the possibility of parole. On appeal, the Defendant cont ends that (1) the evid ence was insufficient to support his conviction because the State failed to prove beyond a reasonable doubt that he was responsible for the victim’s d eath and that he acted with premedita tion and (2) the evide nce was insuf ficient to support an enhance d sentence based upon t he aggravating circ umstance that the murder was espec ially hei nous, a trocious, or crue l. After revie w, w e affir m the jud gment of the trial court with respec t t o the Defendan t’s con viction. How ever, w e reverse the judg ment of the trial court with respect to the Defenda nt’s sentence and r emand the case for the entry of an amend ed judgment se ntencing the D efendant to i mprison ment for life. Tenn. R. App. P. 3 Appeal as of Right; Judgm ent of the Crim inal Court Affirme d in Part & Re versed in Part; C ase Rem anded K YLE A. H IXSON, J., delivered the opinion of the court, in w hich J ILL B ARTEE A YERS and T OM G REENHOLTZ, JJ., joined. Joshua D. Hedrick, Knoxville, Te nnessee, for the appellan t, John Bas sett. Jonathan Sk rmetti, Attorney General a nd Reporter; Joh n H. Bledsoe, D eputy Attorney General; Johnny Cerisano, A ssistant Attorney Genera l; Charme P. Alle n, Dist rict Att orney General; and Rachel S. Hill and Joanie Stalla rd Stewart, Assistant Distric t Attorneys General, for the appelle e, State of Tennes see. 03/06/2026

OPINION I. F ACTUAL AND P ROCED URAL H ISTORY This case ar ises from the June 1 9, 2021 shooting death of DeShee na Kyle, th e victim, in her apart ment in Knoxville. Foll owing this incident, a Kno x County grand ju ry charged th e Defendant via present ment wi th fi rst degre e p remeditate d murder, tam pering with eviden ce, and a b use of a corpse. See Tenn. Code Ann. § § 39- 13-202, -16-50 3, -17-312. The State file d a written no tice t hat it intended t o see k a sentenc e of li fe imprisonment without the possib ility of pa role as to th e first de gree mur der c harge. T he Defendant pled gui lty t o the tampering with e vidence charge, and the case proceeded to a jury trial on the two re maining charges. T he bifurcated trial lasted seve n da ys, b eginning on May 9, 2023. A. The Guilt Phase Rita Turner, th e victim ’s aunt, testifi ed that the victim and the D efen dant had bee n romanticall y involved on a nd off for several years. Ms. Turn er sta ted tha t she went to the victim’s apartm ent on June 25, 2021, t he victim’s birthda y, to c heck on t he vic tim a fter not having heard f rom her. Once there, she called law enforc ement to perf orm a welfare c heck. In addition, Ms. Turner confirmed t hat she di d not know the victim to be suicida l and wa s unaware of any attempt s that the vict im may have made on her own life. Ms. Turner further testified that she knew the victim to ke ep a nea t and clean house. Sergeant Mi chael Coo per of the Knoxville Police Departm ent (“ KPD”) responded to the call. H e testified that he was let into the victim’s a partment by the property ma nager. Once inside the apartm ent, he observed t hat th e window on the back side of the apartment was broken, there was blood sme ared on the floor of the closet, and the victim w as not present. Upon t his di scovery, K PD O fficer Adam Winstead wen t to t he De fendant’s house to inquire about the victim’s whereabouts. Th e Defendant did n ot appe ar to be present at the house, but Officer Winstead was able to speak with him over the phone, at which point the Defendant a dvised that he had not seen or talke d to the victim recently. Rachel W arr en, a KPD crime sce ne te chnician, t estified that s he visi ted the vic tim’s apartment and observe d a w all sconc e on the ground and a shoe pri nt on t he tel evision, which w as crac ked a nd unplugged. Rolli n Mc Gowan, a KPD special crimes investigat or, described the conditio n of the television in the victim’s apartme nt: “It looked like somebody had knocked it o ver a nd se t it back up, plugged it ba ck in th e TV, but forgot to

plug it into the wall.” Ms. Warren recalled that the re was some ki nd of liquid r unning down the back of the couch and t hat “so mething had bee n runni ng down the wall” beh ind the victim’s bed. Ms. Warren also dis covered blood stains on the tele vision, fr ont d oor frame, bathtub, closet floor, and on a r eceipt on the victim’s bed side tab le. Later T ennessee Bureau of I nvestigat ion testing c onfirmed that the blood from the television and front do or frame matched the Def endant and that the blood found on the bathtub, closet floor, and the receipt matc hed the vic tim. Investigator McGowan also share d a ph one c all with the Defen dant a f ew days after the Defendant’s phone call with Offi cer Win stead, and the De fendant again advi sed that he had not se en the victim and did not know where she wa s. I nvestigator McGowa n interviewed the De fendant in person on June 29, 2021, during which t he Defendant stated that he h ad not seen t he vic tim sinc e June 14 and tha t the tw o were no l onger in a relationshi p. Ms. Warre n stated tha t sh e r eturned to the v ictim’s apartment two w eeks after the initial search and docume nted more items around the apartment. Ms. Warren recalled that there were reddish-b rown stains se en on a ma ttress—one la rge and one small. She a lso documented more redd ish-brown stains o n the walls of the apartm ent. The D efendant was ne xt interviewed on Ju ly 7, 2021. H e a gain sta ted that he had not se en or talked to th e victim since June 1 4, 2021. During this intervie w, he also a dvised the investigat ors of som e potential suspe cts he believed coul d be involved w ith the v ictim’s disappearance, includ ing a man that he a lleged ha d been seen w aiting outsi de of the victim’s plac e of work, a s well as two of h er male neighbors. KPD obtained search warrants to acces s data from the Fo rd F-150 r ental truck that the Defenda nt had b een driving in June 20 21 and the Defe ndant’s ce ll pho nes. Sha nnon Morris, a KPD digita l forensics special ist, testified that the locati on data from the Defendant’s p hone and truc k r ecords show ed that the D efendant wa s a t t he victim’s apartment on June 17, 2021. Pe r the l ocation data obtained from the D efendant’s devices and photogr aphs foun d in the Defenda nt’s Sna pchat me mories, he and the vic tim went to dinner together that evening before going back to he r apartment, where he spent the night. The D efendant left t he victim’s a partment for pa rt of the day on June 1 8, but he returned to the apartment for a bout an hour during the a fternoon and ulti mately s pent the night again. The D efendant proceed ed to ma ke vari ous internet searches fro m 4: 01 p.m. on June 18 to 9:36 a.m. on June 19 p ertaining to implantati on bleeding and determining when a wo man is pregnant.

Later in the evening o n June 19, t he Defendant a gain conducted se veral internet searches. At 11:48 p.m., the Defendant se arched, “How t o kee p pe rson from biting tongue.” Starting at 11:50 p.m., the Defend ant made several se arc hes lookin g f or t he definition of “ biting [one’s] tongue.” Then, t he Defendant searche d, “Biting my tongue meaning shot in the head” at 11:53 p.m. a nd “How to stop biting the tongue” at 11:56 p.m. He also searched, “How long u have t o life [sic] after be ing shot i n the head” at 11:58 p.m. and again at 12:02 a.m. The D efendant al so viewed tw o online ar ticles titled, “Only 5 % survive gunshot woun ds to head” a nd “ Can P eople Sur vive G unshot Wounds to t he H ead?” at 11:58 p.m. and 11:59 p.m., res pectively. The location da ta from the Defe ndant’s phon e and truck r ecords show ed that the Defendant left the victim’s apartm ent wit hout his truck the night of June 1 9. The t ruck remained at the v ictim’ s apart ment until 3: 52 a.m. on June 21, 2021. The records reflected that, after the De fendant left the vic tim’s apartme nt in his truck on June 21, he p roceeded to make se veral stops, som e of w hich include d multipl e visits to a property on McDonald Road. He first visited the McDonald Road pro perty around 5:0 0 p.m. that day and lef t for about a n hour before r eturning a nd sta ying at the pr operty f or appro ximately three and a half hours. Ms. Morri s testified to the Defen dant’s various mo vements in the days that followed, in cluding w hen the Defen dant ret urned to the vict im’s apartment on June 25 around 5:00 a.m., w here he stayed for about forty-five minu tes before going to a propert y on Sam Till ery Roa d th at used to bel ong to his great-grand mother. The D efendant’s phone records sh owed that later that night he searche d, “when police g et a call from l oved o nes worried about t hem and they come to your house what usually happens ne xt.” He continued t o make simila r searches in to the early hour s of June 26. Based o n this locati on data, over the ne xt fe w months, law enf orcement proceed ed to search “a significant a mount” of different lo cations tha t th e Defendant had visite d a nd the Defendan t’s reside nce. Nicole Sa uls, a KPD crime scene te chnician, assis ted with a search of the Defendan t’s apartme nt. She collected several pairs o f Nike shoes belong ing to the Defe ndant; the s oles of whic h, in her opinion, appea red to ha ve the same pat tern a s the shoe print on the te levision in the victim’s apart ment. She also to ok a box for a Smit h & Wesson .357 re volver from the Defendant ’s residence. Eventually, officers sea rched the McDonald Road a nd Sam Tillery Roa d prope rties. At the Mc Donald Roa d property, the y f ound chairs from the vic tim’s apartmen t, one of which had bl ood sta ins later confirme d to m atch the victim. At th e Sam Tillery Road property, the y found the victim’s body.

KPD L ieutenant Mich ael Lance E arlywine testi fied th at, while sear ching the Sa m Tillery Road property on September 28, 2 021, he w ent into the crawlspace of the abandoned house on th e property. O nce insid e, he saw a truck be d t oolbox with “a blanke t or something hangi ng out of the side of it.” Upon opening the box, he obs erved wha t appeared to b e bone, a lot of flies, and a bad odor. A fter another officer confirmed that it appeared there w as b one coming out of the toolbox, th e toolbox w as tr ansported to th e medical examin er’s off ice. The Knox County me d ical examine r, Dr. Darinka Mileusnic-Polc han, testified tha t when she received the toolbox, there was a c omforter stuffed at one end, an d a lthough wrapped in v arious materia ls, some of th e human bone was v isible. Upon further inspection, Dr. Mileus nic-Polchan discovered that the t oolbox contai ned a human body wrapped in layers of g rocery store bags, trash bags, plastic wrap, and duct tape. Ma rk Crumpton, a forensic odontologist, confi rmed that these remains matche d the victim’s dental record s. Dr. Mileus nic-Polchan determined tha t the c ause of death wa s a gunsh ot wound tha t entered from the to p le ft and exited at the ba ck right area of the victi m’s hea d. Due to the presence of soot and gunpow der r esidue, it was consistent with a conta ct wound. She c ould not rule out a.357 cali ber pistol as the weapo n used. She testifi ed th at the wound would not have been im mediately fa tal but was “even tually” fatal fr om the combina tion of blood loss and b rain sw elling. She was unable to es timate a time frame for how long it would have taken the victim to d ie from the gunshot w ound beca use th e a mount of time it ta kes for the br ain to sw ell varies am ong indi viduals. Dr. Mileusni c-Polchan also st ated tha t loss of bodily control, including urinatin g, defecating, and seizing, which c ould cause biting of the tongue, could all be e xpected from a gunshot wound to the head. There was no evide nce that the victim wa s pregnant, nor were th ere a ny p rescription medica tions in the victi m’s body at the time of he r dea th. Based on the bo dy’s state of d ecompo sition, inclu ding the deterioratio n of soft tissue, Dr. Mileus nic-Polchan was unable to de termine whe ther the victim suffer ed any ad ditional injuries. Dr. Murray Ma rks, a forensic anthropologist, a lso examined the vict im’s remains. He observed a gunshot wound to the le ft sid e of the skull. Ac cording to Dr. Marks, the bullet entered just above and behind the vic tim’s le ft e ar a t a n a ngle a nd traveled dow nward and ba ckward through her skull exiting the right side. He observed fragmentin g to the victim’s skull due to t rauma from th e gunshot wound. He explai ned, “ [M]ost of that fracture woul d be synonymous w ith a high- degree of force tha t was imparted o n that

neurocraniu m. But the re could be other things that might ha ve take n place.” T here were no obser vable fractures from the neck do wn, a nd while the re could have been su perficia l damage to the victim’s soft tissue, he could not say due to t he body’s le vel of decomposition. The St ate also present ed e vidence of an a ltercation bet ween the vi ctim and the Defendant tha t occurred on the after noon of June 18, 2021, before the victim ’s death the following e vening. Robert D avis, a mechanic who was repair ing a c ar at the K nob Hill apartment c omplex o n June 18, tes tified th at he saw the De fendant “gra b [the victim ] by the throa t and thro w her against the wall and say, ‘I’ll kill you, b----,’ ” before getting into a late-mode l, four-d oor Ford F- 150 and driving a way. Tatyana J ones, the Knob H ill resident who was getting her ca r repai red, te stified that she w as waiting underneath a nearby tree when she heard yelling and breaki ng glass before seeing a man come out from behind the apart ment building. Accor ding to Ms. Jones, the ma n tried to get into an apartment in the vict im’s building be fore getti ng into his truc k. Ms. Jone s stated that sh e was unable to identi fy t he man, b ut sh e describ ed hi m as a Bla ck male, a descrip tion w hich includes the Defendant. She also said that the man was wearing a white shirt and had “wild” ha ir. Additiona lly, Joy Jenkins, the p roperty mana ger, test ified that the victim called her on June 18 to report that the windo w at the bac k of her apartme nt was broken. Ms. Jenkins no ted that, w hen she went to see th e window, she obse rved that the victim appeared “scared” and “ve ry nervous.” She off ered to let the victi m stay in her office, but the victim did not accep t her offer. The Defendant elected to testify in his own de fense a nd corroborate d much of t he State’s evide nce. He st ated that everythi ng he had previ ously to ld law enforcement was a lie. He confirmed that he spe nt ti me w ith the victim and slept at her apartment betw een June 17 and 1 9, 2021. He a lso confirmed that he and the victim had g otten i nto an argument at her apartm ent on J une 18, during which the victim scratched his Ford F-15 0 rental truck with a curtain rod and he broke the window behind her a partment. The De fendant test ified that the vict im had told him she was pregn ant with anothe r man’s child. Regarding the victim’s d eath, the Defe ndant t estified that t he victi m woke him up on June 1 9 with his phone in her hand, u pset that he was talkin g to another wo man. He alleged that she thr eatened to kill he rself and put a.357 caliber handgun, that he h ad previously give n he r, to h er head. The Defen dant was u nable to exp lain wh en the vi ctim grabbed the gun, sugge sting that it just “appear[ed] by her hea d.” He also clai med that it was in her left ha nd, de spite t he vi ctim’s bein g righ t-handed. He stated tha t he trie d to approach th e victi m to c alm her down, at whic h point she backed away from him and int o

a c hair t hat was in h er closet. Whe n she turned around to see what she bu mped in to, t he Defendant claimed that he lunged for the gun, and it went off, resultin g in the victi m’s gunshot wound to the head and her collapse i nto the chair. He d id n ot know if the victim was still alive. H e then proceede d t o make the various internet searc hes to which Ms. Morris had previously testified. The Defendant confirmed that he did not attempt to apply pressure to the vic tim’s wound, ca ll 911, o r sear ch “how to help so meone shot in the head.” In his own words, he just “wanted t o make sur e she was g oing to die. ” After th e shooting, the Defendant fle d the vict im’s apartment on foot. He took the firearm and the shell c asing w ith him, eventual ly disposin g of th e fir earm but t aking t he shell c asing t o his hous e. Law enforcement re covered th is she ll c asing in a search of the Defendant’s bedroom, and on cross-examinati on, th e Defendant identifie d it a s the one he took from the scene. Additionally, the Defenda nt te stified tha t he r eturned to the victim ’s apartment on June 21 and J une 2 5, 2021, to clean t he sc ene, using ble ach a nd rags that he f ound in th e apartment. On the first visit, he took the c hair the victi m fell i nto w hen she di ed a nd its matching counterpar ts to th e McDona ld Roa d property. On the seco nd visit, he wrapped up the vi ctim’s body w ith grocery bags, tra sh bags, plastic w rap, and d uct tape, all of which he found in the apart ment, before pu shing it through the broken back window o f the apartment and p utting it into the backseat of his truck. The Defe ndant then took t he victim’s body to the Sa m Tillery Road prope rty, where he put the body into the truc k bed toolbox and plac ed the to olbox into the cra wlspace of the house. According to the Defe ndant, the vic tim’s gunshot w ound wa s se lf-inflicted. Suggesting a histor y o f mental healt h iss ues, t he Defendant c laimed that there we re times when the victim r efused to get ou t of be d and would cover her a partment wind ows w ith bedding. D uring one inc ident on November 26, 2 020, the vic tim c ame over to his house around 4:00 a.m. and punched his win dow when he would not an swer her. When he brought h er into his bed room to tr y to tend to he r ha nd be cause it was ble eding, she grab bed a gun from off his bed a nd put it to her head, yelling tha t she did n ot want to “ be here” anymore. After calming her down, the De fendant called one of her a unts and informed her of the situa tion, and the victim’s aun t called 911. The 911 call w as pla yed for the jury. During the cal l, the v ictim’s aun t, based upon inf ormation pro vided to her by the Defendant, can be heard informing the 911 operator that the victim was bleeding, suicidal, and unme dicated, desp ite her bein g bipola r and schiz ophrenic. The body c amera footage from the of ficers who responded to the scene was pla yed fo r the jury. The victim appeared relatively calm and denied be ing suicidal or having an y mental health issue s. Th e

Defendant did not mention anything to la w enf orcement about the v ictim’s alleged attempt to kill herself. The Defenda nt also pre sented evidence of prior a ltercations with th e victim, the most recent of w hich he alleged was par tially responsib le for the disa rray o f the victim’s apartment. Durin g thi s inc ident in May 2021, the Defe ndant a nd the victim got into an argument a t h er apartm ent, during whic h she pushed him into a mirror in her living room, which cut his ar ms a nd caused h im t o ble ed. F rustrated over the argument and hi s inj uries, he kicked the te levisio n. H e a lso testif ied to a previous incident in which he and the victim were arguing ab out a woman who ha d called him and the v ictim sta bbed him in the c alf. The Defendant’s great- uncle, Je ff We bster, also testified to an in cident tha t oc curred several months before th e victim’s de ath, where the vic tim threw a ro ck at the Defendant’s car while the c ouple wa s arguing. After de liberation, the jury found the Defenda nt g uilty of first degree premedia ted murder and a buse of a corpse. A sentencin g hearing ensue d. B. The Sentenc ing Phase The State sought a sentenc e of lif e imprison ment without the possibility of parol e for the Defen dant’s murder conviction. In support of t his enha nced sentence, the State alleged two a ggravatin g circumstanc es: that the murder was e special ly heinous, atroci ous, or crue l an d tha t the Defendant know ingly mut ilated the body of the victi m. Se e T enn. Code Ann. § 39-1 3-204(i)(5), (13). Relying on the eviden ce introduced during the guilt pha se of the t rial, the Stat e did not pr esent any additio nal evidence regard ing the espec ially he inous, atrocious, or cr uel aggravator. Regardin g the knowing mutilation of the body aggra vator, the victim’s grandmothe r, Betty Deas, testified about the f amily’s burial trad itions and stated that the victim’s body was not found in a state that would a llow the family to follow these traditions. Ms. Deas al so te stified th at, whil e the victim wa s missi ng, she discussed with the Defendant he r conce rns about possible decompositio n of the victi m’s body. At the conclusion of th e proof, the ju ry declined to find that the Defendant knowingly mutila ted the victim’s body b ut found that the e special ly heinous, atr ocious, or cruel aggravator a pplie d. Based upon the presence of this aggrav ating circumst ance, a sentence of l ife imprisonm ent without the possibility of parole was im posed.

The Defendant filed a timely motion for new trial, challenging both issues he raises on appe al. The t rial c ourt, f ollowing a hearing, de nied the mot ion, fi nding th at the evide nce was sufficient to support the Defendant’ s m urder conviction and to support the jury’s finding o f the e specially heinou s, atr ocious, or cruel a ggravating circu mstance. This timely appeal follow ed. II. A NALYSIS The D efendant ra ises t wo issues o n appeal. F irst, he assert s that the e vidence w as insufficient to support his c onviction for first degree premed itated murder because t he State failed to pr ove beyond a reasonable d oubt that he was respo nsible fo r the gunshot which killed the victim and that he a cted w ith premed itation. S econd, he ass erts tha t th e evidence was insufficient to support the ju ry’s f inding of th e aggravating circ umstance that the murder was espec ially heinous, atroc ious, or crue l. The State respon ds tha t the evidence was sufficient to sustain both the jury’s finding of guilt as to fi rst degree premedita ted murder and its appl icat ion of the e specially he inous, atroci ous, o r cr uel aggrava tor. We address each issue in tur n below. A. Sufficiency of the Convict ing Evidence The United Sta tes C onstitution prohi bits the sta tes from de priving “a ny pe rson of life, liberty, or propert y, without due pr ocess of law[.]” U.S. Con st. amend. XIV, § 1. A state shall not deprive a criminal defendan t of his liberty “except upon proof beyond a reasonable doubt of every fact necessary to co nstitute the cri me w ith which he is charged.” In re Wins hip, 397 U.S. 358, 3 64 (1970). In d etermining whet her a state has me t this burden followi ng a fin ding of guilt, “the r elevant que stion is whet her, a fter vie wing the evidence in the li ght most favorable to the pro secution, any rational trier of f act could hav e found the e ssential elements of the c rime be yond a reaso nable doubt. ” Jack son v. V irginia, 443 U.S. 307, 319 (197 9). Because a guilty verdict removes the presumption of innoce nce and re places it wit h a presumption of gui lt, t he defendant has the burden on appea l of illustrating why the ev idence is insuf ficient to support the jury’s verd ict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). If a convicted defendant make s this show ing, the finding of guilt sh all be set aside. Tenn. R. App. P. 13(e). “Questions conce rning the credi bility of witnesses, the weigh t and value to be give n the evidence, as well as all f actual issues raised by the evidence are resolved by the trier of fact.” State v. Bla nd, 95 8 S.W. 2d 65 1, 659 (Tenn. 1997). Ap pellate cour ts do not “ reweigh or re evaluate the evidence.” Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978)). “A guilty verd ict by the jury, approved by the trial judge, accredits the testim ony of the witnes ses for the State and re solves all conflicts in f avor of the theory of the State.” State v. Gr ace, 493 S.W.2d 474, 476 (Tenn. 1973). Th erefore, on a ppellate review, “the State is e ntitled to the strongest legi timate vie w of the trial evide nce and all reasonable or legitimate i nferences w hich may be dr awn there from.” Cabbage, 571 S.W.2d at 835. First degree murder i s defined as “[a] premeditated and in tentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). A person acts intenti onally “when it is the person’s c onscious obje ctive o r desire to enga ge in th e conduc t or ca use th e result.” Id. § -11-106(a)(21). “[P]remeditat ion” is an act done aft er the e xerci se of reflection and j udgme nt. “Premeditat ion” means that the intent to kill m ust have been forme d prior to the ac t itsel f. It is n ot necessary t hat the purp ose to kill pr eexist in the mind of the accused f or any definite pe riod of time. The mental st ate of the accused at the time the a ccused allegedly decided to kill must be caref ully c on sidered in order t o d etermine whether the accuse d was suffic iently free f rom excitement an d passion as to be capabl e of preme ditation. Id. § -13-202(d). 1 “Pre meditation may be inferre d fro m the manne r a nd c ircumstance s of the killing.” Fi nch v. Stat e, 226 S.W.3d 307, 318 (Tenn. 2007) (c iting Bland, 958 S.W.2d at 660). Severa l ci rcumstances may bear on t he existe nce of prem editation, incl uding but not limited to: (1) The use of a deadly wea pon on an unar med victim; (2) The particula r cruel ty of the killin g; (3) Threats or declarati ons of intent to kil l; (4) The procur ement of a weapon; (5) Any p reparations to concea l t he crime un dertaken before th e c rime was committed; (6) The destruc tion or s ecretion of evidence of the killing; 1 This subsection was redesignated in 2021 and is now loc ated at Tennessee Code Annotated section 39-13-202(e). 202 1 Tenn. Pub. Acts, ch. 39 4, § 1.

(7) Calmness a fter the killing; (8) Evidence of motive; (9) The use of m ultiple weapons in succes sion; (10) The infli ction of mult iple wounds or repeated blows; (11) E vidence tha t th e victim was retreating or attemp ting t o e scape when killed; (12) The lack of provo cation on the part of the victim; a nd (13) The failu re to rende r aid to the victim. State v. Reynold s, 6 35 S.W.3d 893, 9 16-17 (Tenn. 2 021). The list of spec ific circ umstances developed thr ough c ase decisions is n ot exhaustive, howe ver, and th e tr ier of f act “is not limited to any specific evidence wh en determi ning w hether a defenda nt inte ntionally kil led the vic tim a fter t he exe rcise of re flection and judgment.” State v. Da vidson, 121 S.W.3d 600, 615 (Tenn. 20 03) (citation m odified). Here, th e Defendant ar gues that n o reasona ble juror could have f ound be yond a reasonable doubt that he shot t he victim in the he ad and that he did so w ith premedita tion. First, he conte nds that the “l aw require s a con nection be tween a n act or omiss ion by [the Defendant] and t he gunshot” and that “no pr oof of such a connection” existed in this c ase. Rather, he argues that t he State’s evidenc e me rely establi shed that the victim died from a gunshot wound t o the head, which is consiste nt with his testimony that the vic tim’s wound was self-inflict ed. C ontrary to the Defendant’s argument, the Sta te prese nted evidence that the victi m was shot on the left side of her h ead a t clos e range, despi te be ing right-han ded. Additionally, the ju ry he ard the Defe ndant’s theory tha t the victim’s wound w as self-inflicted via suic ide or accidental dischar ge and r ejected it. I t is the provin ce of the jury to accept or reject the evidence pres ented at trial, a nd this c ourt will not reweig h the evidence on a ppeal. See Bland, 95 8 S.W.2d a t 659. Second, t he Defendant contends that “there is no proof of premedi tation.” We cannot agree. Evidenc e showed that the Defe ndant thought the vict im was pregnant with another ma n’s c hild and that the d ay pri or to the v ictim’s being s hot, an altercation occurre d

between the two, during which t he Defe ndant thre atened to kill the victim. Se e State v. Trusty, 32 6 S.W. 3d 582, 595-96 (Te nn. Crim. App. 2 010) (holdin g th at there was s ufficient evidence of prem editat ion where, among other things, t he defe ndant declared hi s intent to kill the victi m if she ever le ft him). Af ter th e victim was shot, the Defendant faile d to render aid or call 911. See State v. Banks, 271 S.W.3d 90, 139 (Te nn. 2008) (concluding that there was sufficient evidenc e of premeditation based in part on the defendant’ s failure to provide a id or as sistance to his vict im a fter he shot him). Instead, for over twe lve minutes, the Defendant conducted m ultiple int ernet searches about biting one’s to ngue after being shot in th e head, how long before someone dies after be ing shot in th e he ad, and what an individua l’s survival rate is a fter being shot in the head. In the D efendant’s own words, he just “ wanted to make sure she was go ing to d ie.” H e then c oncealed evidence of the c rime by hiding the victi m’s body, dispos ing of the gu n, re locating the sh ell casing f rom the vi ctim’s a partmen t, cleani ng the victim’ s a partment, and r emoving blood-stained furniture from the victim’s apa rtment. See Rey nolds, 635 S.W.3d at 917; State v. Adam s, 40 5 S.W.3d 6 41, 6 49, 663 (Tenn. 20 13) (holding that the defend ant’s disposal of the vi ctim’s body in a p ark in add ition to other fact ors supported the eleme nt of premedit ation); Bla nd, 958 S.W.2d at 660 (considering the defendant’s disposal of th e murder wea pon in its conclusion that the t here was sufficien t evidenc e to e stablish premeditati on). From t his evide nce, a reasona ble juror could infer that the De fendant ac ted with premeditati on. The jury’s ve rdict in this c ase accredite d th e testim ony and evidence presented by the Stat e, as was its prerogativ e. Se e G race, 493 S. W.2d at 4 76. The Defendant is not entitled to r elief. B. Sufficiency of the Agg ravating Circumsta nce Once a defendant h as been found guilty o f f irst d egree premedit ate d mur der, a sentence of imprisonm ent for life without the possibilit y of parole may be imposed upon a unanimous finding b y th e jury that the State has proven bey ond a reasonable doubt the existence of on e or more of the statutory a ggrava ting cir cumstanc es. Se e Te nn. Code Ann. § 39-13-204 (i). The st an dard for reviewing the sufficiency of the e vidence of a n aggra vator is the same a s for reviewing th e suf ficiency o f the evidence of an offense of c onviction. See Stat e v. Smith, 893 S.W.2d 90 8, 9 12-13 (Te nn. 1994) (applyi ng the same sufficiency of the e vidence standard when eva luating the jury’s f inding of guilt and its finding of the heinous, atrocio us, or c ruel a ggravator). As suc h, “the proper inqui ry for [thi s c ourt] is whether, a fter r eviewin g the evidence in the light most favo rable to the State, a rational trier o f f act could have found th e e xistence of the aggravating circ umstance beyond a reasonable doubt.” Sta te v. Suttles, 30 S.W.3d 252, 262 (T enn. 2000).

By statute, there are n ineteen differe nt aggravating circumsta nces, including, as relevant here, that “[t]he offense was e speci ally heinous, atrocious, o r crue l, i n that it involved torture or serious physical abuse b eyond tha t nece ssary to produce death[.]” Tenn. Code Ann. § 39- 13-204(i)(5). The co urt has spe cified that, when ev aluating this aggravating c ircumstan ce, “it is the murde r which must be especi ally heinous, a trocious, or cruel.” State v. Williams, 690 S.W.2d 51 7, 529 (Te nn. 19 85). In determ ining the meaning of the words in the statute, the Tennessee Su preme C ourt has relied on their ordinary dicti onary definitions: Heinous—“Grossl y wicke d or reprehensible; abominable; odious; vil e.” Atrocious—“E xtremel y evil or cruel; m onstrous; e xceptionall y bad; abominable.” Cruel—“Disp osed to inf lict pain or sufferin g; causing suf fering; pa inful.” Id. (citing A MERICAN H ERITAGE D ICTIONAR Y OF THE E NGLI SH L ANGUAGE). As the focus is on the circumstan ces of the murder, there is no required mens rea. State v. Carter, 988 S.W.2d 145, 150 (Tenn. 1999). “Whether the defendant i ntended the victim’s suffering is irrelevant.” I d. The second clause of thi s statutory p rovision “qualifie s, limits an d restricts the preceding words ‘esp ecially heinous, atrocious or cruel,” meaning to show that the mur der was especiall y heinou s, atrocious, or crue l, the State mu st prove that such tre atment involved either tor ture of the victi m or sever e physical abus e beyond that neces sary to produce death. See Wi lliams, 69 0 S.W.2d at 5 29 (analyzi ng a prior statutory ve rsion); see also State v. Ke en, 31 S.W.3d 1 96, 206 (Tenn. 2000). Our supreme court has ob served that “torture” and “serious p hysical abuse” are separate and distinct th eories. See State v. Odom, 928 S.W.2d 1 8, 26 (Tenn. 199 6). A dditionally, “[t]he law does not r equire t hat jurors agree as to which th eory su pports their view that t he murder is ‘especially heinous, atrocious, or cruel.’” State v. Jones, 56 8 S.W. 3d 101, 139 (Tenn. 2019) (citi ng Keen, 31 S.W.3d at 209). Torture is define d as “[t]he inflict ion of severe physical pain as a mean s of punishment or coercion; the experie nce of th is; me ntal a nguish; a ny method or thing that causes su ch pai n or a nguish; to inflict wit h great physic al or mental p ain.” William s, 690 S.W.2d at 5 29 (citing A MERICAN H ERITAGE D ICTIONARY OF THE E NGLISH L ANGUAGE). Our supreme c ourt fu rther expounded on the definiti on of “ torture” to i nclude “the

infliction of seve re physical or me ntal pain up on the victim while he or she remains aliv e and c onscious.” Id. (emphasis added). As su ch, “[t]he tortu re pro ng of (i)(5) only requires a ju ry f inding that the victim remained c onscious and sustaine d severe physical or mental pain and su ffering betw een th e inf liction of t he w ounds a nd the time of death.” Carter, 988 S.W.2d at 150. As for the theory of se rious physic al abuse, our supreme court has st ated that the terms wit hin the phr ase “‘se rious physical abuse beyond th at necessa ry to pro duce death ’ are self-explan atory[.]” State v. Hall, 8 S.W.3d 593, 601 (Tenn. 1999). Specifical ly, The word “serious” all udes to a matter of degre e. T he abuse must be physical, as op posed to menta l, and it mu st be “beyo nd th at” or m ore th an what is “nece ssary t o produce death.” “Ab use” is defined as a n ac t that i s “excessive” or which makes “ improper use o f a th ing,” or which uses a thing “in a manner c ontrary t o the natural or legal ru les for its use.” Odom, 928 S.W.2 d at 26 (quoting B LACK ’ S L AW D ICTIONARY (6th ed. 1990)). On appe al, th e St ate ar gues tha t suff icient evidence supports the jury’s finding that the victim was tor tured or sustained serio us physical a buse be yond that necessary to produce her death. Fir st, the State sub mits th e altercation on June 18, 2021, i n which t he Defendant broke the v ictim’s apartment window, grabbe d her b y the throat, threw her against a wall, and thr eatened to kil l her, brought about menta l distress for the victim until her death the follow ing day. The Sta te then avers tha t “the i ncident on June 18, 2021, does not stand alone in estab lishing that the murder was especially cruel.” The State m aintains that the phys ical strugg le between the Defe ndant and the vict im on the eve ning of June 19 increased the victim’s physical a nd mental a nguish imme diately prio r to the De fendant’s taking the vic tim to he r closet a nd shooting her in the head at close r ange. Fi nally, the State contends th at the D efe ndant’s failure to ren der ai d after the victim was shot— a shot that was not immedia tely fa tal—while she w as convulsing and biting he r tongue until her eventual death further contributed to her men tal anguish. The State notes that the jury could have found the aggravator based on its acceptance of any c ombinatio n of thes e theories, a nd it encoura ges this c ourt to c onsider the culmi nation o f each o f these circumstances t o evalu ate the sufficie ncy of th e evidence. The Defe ndant argues that his case is n ot as severe as those where the e specially heinous, atrocious, or cruel aggrava ting circu mstance has been upheld on a ppeal. First and foremost, the Defendan t notes there was no evidence of an y injury or trauma to t he victim

other than the single gunshot wound to th e he ad and tha t the gu nshot woun d “ cause d a t least near-in stant deat h.” Further, the Defe ndant argue s that the June 18 assault is to o temporally distant from the murder itself to satisf y the aggravatin g factor. At tr ial, the p roof regarding the victim ’s manne r of death show ed tha t she died fro m a single gunshot w ound to the head and tha t she was sh ot inside a cl oset in her residence. Dr. Mileus nic-Polchan testified that the victim’s d eath wa s n ot imme diate, and the Defendant’s search history c ertainly sug gested that the victim may have lived for some time and experience d sei zures followi ng the c lose-range gunshot wo und. B ut, there was no e vidence offered to suppor t a ny r easonable i nference that the victi m remained c onscious after she was shot. A nd, to find that the De fendant tortured the victim based upon his actions subse quent to t he shooting, th e jury would need to f ind th at the victi m r emaine d conscious while s he sustained severe mental pain and s uffering pri or to her death. Se e Carter, 988 S.W. 2d at 150. We a lso recognize that our sup reme court has denote d the an ticipation of physical harm to oneself, under ce rtain circumstanc es, as being torturous. See id. Howeve r, in this case, we ha ve little e vidence of w hat o ccurre d in the vi ctim’s ap artment prior to t he shooting. It was also unclear how the vict im came to be shot in the closet or for how long the gun might have be en held to her head. A t trial, there was evi dence presented of a tumultuous on-again- off-again relationship between the Defendant and the victim throughout the ir time togethe r, and which sug gested that there may have been times when the vic tim playe d a n active role in the ir alter cati ons. A lthough th e v ictim’s aunt tes tified that the victim usually kept a neat and clean house, there was no evidence that the victim’s apartment, immediately prior to any struggle with the Defe ndant on June 19, was in a neat and orderly condit ion. And, w hile there we re trace s of the Def endant’s and t he victi m’s blood in different areas around the apartme nt, the record fa iled to e stabli sh when or under what circu mstances thi s e vidence was le ft behind. N or d id the r ecord demon strate when or how the television was damaged—other than the Defe ndant’s testimony that it oc curred the month pr ior—or whe n or how the sco nce was knocke d off of the wall. To conc lude tha t the vi ctim e xperienced to rture beyond t hat necessar y to produce her death, the jury would have had to speculate as t o whether there was a s truggle between the Defendant a nd the victim that evening a nd whether the Defe ndant was the prima ry perpetrator during thi s str uggle, an d w hich cu lminated in his forcin g the victim int o her closet and holdi ng her there at gunpoint for s ome length of ti me befor e shooting her in the head. Ma tters o f pure speculation cannot su pport any reaso nable inf erence on t he part of the ju rors th at any of this caused the victim to experie nce mental distress or anguish prio r

to her dea th. See State v. Pack, 421 S.W.3d 629, 643 (Te nn. Crim. App. 2013) (“Although the State is entitl ed to a ll reasonable inference s from the proof, th e jur y may not speculate an accused into the pen itentiary.”); see also State v. B eckham, N o. 02C 01-9406-CR-0010 7, 1995 WL 56847 1, at *1 7 (Te nn. Crim. A pp. Se pt. 27, 1995) (conc luding t hat there was insufficient evi dence to establish ment al tortur e for the purposes of the heinous, atrocious, or cruel aggravator whe re, despite the victim’s being handcuffe d and driven around by the defendant in a truck fo r two h ours, the vic tim was shot on ce in the h ead, killing him, and what happene d during th e truck ride would be “pure specul ation”). The State emphasiz es the alterca tion be twee n the vict im an d the Defenda nt that occurred on June 18, the day prior to the victim’s death, in the parking lot of the apartment complex and ma intains that thi s prior a ltercati on plays a role in e stablishing th e vic tim’s mental anguish prior to the sho oting. How ever, this previou s inc ident o ccurred ove r twenty-four hour s before the victim’s murder. Additionally, based upon location data, the Defendant spent t he ni ght at the vic tim’s apa rtment on the even ing of June 18 followi ng the earlier alterca tion that day. Assuming tha t t he Defendant and the vi ctim had reconciled, any menta l anguish on the pa rt of the victim based up on this June 18 event ha d seemingly dissipated. And, the insta nces in which our supreme court has determin ed that such circumstances in dom estic viole nce cases have suffic iently establ ished the agg ravator involved gre ater tempor al proximity bet ween the c ontinued threat of harm and the murder than ha ve be en show n in the pr esent case. Se e State v. Coope r, 718 S.W.2d 256, 257-60 (Tenn. 1 986) (affirmin g, as sufficie nt, eviden ce that the homi cide was especially hein ous, atrocious, or cruel wher e the defenda nt de liberately harassed and threatened the victim, his estranged wife, “ to th e point of distracti on for se veral w eeks pr ior to the ho micide” and, on the day of the murd er, c alled the victim’s house numerous times, told her mother tha t he intended to kill the victim, and went to the victim’s place of work multiple times where he repeat edly to ld her that he was going to kill her be fore return ing t o her workp lace a nd ultimately shoo ting her four t imes with a shotg un); Hall, 8 S.W. 3d a t 600-01 (con cluding that suffi cient proof of the (i)(5) a ggravator was presen ted whe re the de fendant used child support as a r use to meet with his estranged wife t o att empt reconcili ation, intended to make her “fee l t he h el plessness” that he felt if she woul d not reconc ile, discon nected the telephone lines to the house before the meet ing, threatened to kill her if he r childre n went for help, severely be at her and in flicted at leas t eighty-thre e separate wounds, a nd caused her de ath th rough co mbination o f stran gulation and dr owning”); State v. Jor dan, 3 25 S.W.3d 1, 67-69 (Tenn. 2010) (o bserving, in uphol ding t he im position of the e specially, heinous, atroc ious, or cruel aggrava tor, that t he defendant i nstilled a significant f ear of

death in his e stranged wife by re peatedly le aving he r thre atening me ssages the night befor e he e ntered he r p lace of w ork yell ing her name and first shoo ting her in th e le g). Accordingly, the effect of thi s prior altercatio n on th e victim’s ment al state at the time of the murder, i.e., that she was still suf fering under t he m ental pain or angu ish caused by those prio r acti ons at the time of he r deat h, is merely specul ative gi ven the nature of the couple’s relat ionship and the inte rvening circ umstances be tween thi s prior June 18 incide nt and th e mu rder. See W illiams, 690 S.W. 2d at 529-30 (holdi ng th at, if acts occurring after the death of the victim are r elied upon to sho w the defe ndant’s depr avity of mind, then such a cts must be sho wn to have occurred clos e to the time of the deat h to provide a ra tional basis for the trier of f act to infer that the defendant’s state of mind at the time of the ki lling was depra ved); Terry v. State, 4 6 S.W. 3d 147, 160-61 (Tenn. 2001) (noting, u nder a prior version of the statut e, that “the time fact or merely assi sts in dire ctly relati ng the post-mortem mut ilation to th e c ommissio n of the murde r, ther eby esta blishing the defendant’s depra vity of mind at the time o f the mu rder”). Moreo ver, viewing all of this evidence cumu latively does not remed y its sp eculative nature. See Pack, 421 S.W.3d at 643; Smith, 893 S.W.2d a t 912-13. Finally, there was no evide nce present ed to the jury of additional inj uries tha t the Defendant in flicted upon the vic tim incident t o the murder. Se e Ter ry, 46 S.W.3d at 161 (stating that “ any dism emberment of a c orpse can e stablish d epravity of mind if the acts can be considered incid ent to the murder and no t separate, di stinct or independent from it” (citation modified)). Th e victim’s body remained in her apartment fo r several days before the D efendant remov ed it to a nother locatio n. A gain, b ased upon the e vidence presented, anything that o ccurred to the r emains of the v ictim during this time would be matters of pure spec ulation. Both Dr. Mil eusnic-Polc han and Dr. M arks wer e u nable to observe a ny additional inju ries besides th e gunshot wound to the head upon their respectiv e examination s of the victim’s remains. T he state of decomposition, including the absence of much of the vic tim’ s sof t tissue, prevente d discover y or corrobora tion of any f urther circumstances leadi ng to her death. Acco rdingly, becau se no additi onal injur ies beyo nd the gunshot w ound c ould be detect ed, and because there was insuf ficient e vidence establishing the circu mstances of any physical struggle between t he Defendant a nd the victim leading t o the sh ooting, the re w as no rea sonable in ference supp orted by t he evidenc e that the victi m suffered any se rious physica l abuse beyond that n ecessary to produce her death. See Odom, 9 28 S.W.2d at 26 (no ting that Te nnessee Code Annotat ed sect ion 39-13-204(i)(5) narr ows the constru ction of “ serious physica l a buse” to a buse “ beyond that necessary to produce de ath”); e.g., Brown v. State, 644 So.2d 52, 53-54 (Fla. 1994) (holding that insuffic ient evide nce was presented to sup port the especially he inous, atrocious, or c ruel aggra vator w hen t he me dica l examin er te stified th at the victim’ s bo dy

was badly d ecompose d a nd all that c ould be de termined was that th e vict im had been stabbed three times and none of the wound s would have b een imme diately fatal). The e specially hei nous, a trocious, or crue l a ggravator is to be “re served fo r application o nly t o th ose cases whic h, by comparison or c ontrast, c an be a rticulately determined t o be the very ‘worst o f the wor se.’” Odom, 928 S.W.2d a t 26-27. A s our supreme court ha s sta ted, “ We well u nderstand th at almo st all murders are ‘heinous, atrocious, and cruel’ to some degree, and w e have no purpose to de mean or minimize th e ordeal this murder vic tim experienced.” Id. at 26. Ho wever, we are constrai ned to conclude that the eviden ce in the record does not support the jury’s f inding t hat the m urder was e specially heinou s, atrocious, or cruel. Simila r to Odo m, to affir m the finding of this aggravator under these circumstanc es woul d require it s a pplication almost e very t ime a violent domes tic relati onship is involve d. See id. (finding that the circumstance s of the victim’s rape did n ot constitute tortu re and tha t to apply the heinou s, atrocious, or c ruel aggravator would effec tively pe rmit e very murder in the perpetr ation of a rape to be automaticall y classifie d as a death e ligible offe nse for purposes o f the (i)(5) aggra vator). The serio us p hysical abuse or the torture infl icted mu st mee t the te st of heinous, atrocious, or cr uel. See State v. P ritchett, 6 21 S.W.2d 127, 139 (Tenn. 1981) (noting, u nder a prior ve rsion of the statute, that “thi s a ggravating circumstance r equir es evi dence th at the defendant i nflicted tor ture on th e victim before death o r that defen dant committe d a cts evincing a de praved st ate of min d; that the deprave d state of mind or the torture infli cted must me et th e test of hei nous, atrociou s, o r cruel”). Here, base d upon the evidenc e presented, it does n ot satisfy this stren uous te st. See, e.g., id. (holdin g that th e killing, in which the defendant c onfronted the victim a nd then fired two rounds f rom a twelve gauge shotgun into the back o f the victim’s neck, did not support t his aggrav ating factor bec ause “the evidence [was] inescapa ble that [the vic tim’s] death was inst antaneous from the first gunshot she ll th at was fired”); Williams, 690 S.W.2d a t 529-30; Odom, 928 S.W.2d a t 26-27; Be ckham, 19 95 WL 568 471, at *1 7; cf., e.g., Jordan, 3 25 S.W. 3d at 67-69; Ha ll, 8 S.W.3d at 600- 01; C ooper, 718 S.W.2d at 259 -60. Because the evide nce was insuffici ent to support the applica tion of the sole aggra vator found by the jur y in this case, the Defendant’s sentence of life impriso nment without the possibility of parole is vacated, and the Defendant shall rec eive a se ntence of imprisonment for life. S ee Tenn. Code Ann. § 39-13-204.

III. C ONCLUSION Based o n the foregoing aut horities and r easoning, we affi rm the ju dgment of t he trial c ourt with regard to the Defenda nt’s c onviction but rev erse th e judgme nt of th e tri al court w ith r egard to th e De fendant’s e nhanced sentenc e. We rema nd the case to the trial court for the entry of a n amended judgment sentencing the Defendant to impris onment for life. s/Kyle A. Hixson. KYLE A. HIXSO N, JUDGE