STATE OF TENNESSEE v. KAVASIA S. BONDS AND CHARLES ALLEN JONES ( 2021 )

08/23/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 19, 2021
STATE OF TENNESSEE v. KAVASIA S. BONDS AND CHARLES ALLEN
JONES
Appeal from the Criminal Court for Davidson County
No. 2018-D-2416 Angelita Blackshear Dalton, Judge
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No. M2020-00323-CCA-R3-CD
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Defendants, Kavasia S. Bonds and Charles Allen Jones, along with a co-defendant Brian
Davis, were indicted by the Davidson County Grand Jury for aggravated assault while
acting in concert with two or more other persons. Following a jury trial, Defendants Bonds
and Jones were convicted as charged, and the jury was unable to reach a unanimous verdict
as to Defendant Davis. For their convictions, Defendant Bonds was sentenced to 16 years’
incarceration, and Defendant Jones was sentenced to 14 years. In this appeal as of right,
Defendants Bonds and Jones both challenge the sufficiency of the convicting evidence.
Defendant Bonds also asserts that the trial court erred by admitting into evidence a
photograph of the victim’s eye and that the prosecutor improperly commented on
Defendant Bonds’ silence at trial during closing arguments. Having reviewed the entire
record and the briefs of the parties, we find no error and affirm the judgments of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and ROBERT H. MONTGOMERY, JR., JJ., joined.
Jefre S. Goldtrap (on appeal), Brian Love (at trial), Nashville, Tennessee, for the appellant,
Kavasia S. Bonds
Nick McGregor (on appeal), Anthony Thompson (at trial), Nashville, Tennessee, for the
appellant, Charles Allen Jones.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Glenn R. Funk, District Attorney General; and Amy M. Hunter, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Trial
On July 6, 2018, Defendants and the victim, Alvin Smith, were incarcerated at the
Davidson County Jail. According to Mr. Smith, at around 8:00 a.m., Defendant Jones woke
up Mr. Smith and asked him for the remote control to the “day room” television. Mr.
Smith’s bunk was close to the door to the day room. Mr. Smith told Defendant Jones that
he did not have the remote, and they “had words” in the day room. Defendant Jones and
Mr. Smith both entered the bathroom, and they continued to argue while Mr. Smith used
the urinal. Defendant Bonds was standing by the sinks. Defendant Davis then entered the
bathroom, pushed the victim and said, “that’s my homeboy.” Defendant Jones then hit Mr.
Smith in his eye, and all three men “got to tussling[.]” Defendant Bonds grabbed Mr. Smith
from behind, and Defendants Jones and Davis continued to kick and punch Mr. Smith. Mr.
Smith believed that the defendants stopped attacking him upon seeing the amount of blood
or because other people entered the bathroom. He testified that Defendant Jones spit on
him after the assault. Mr. Smith removed his shirt and tried to stop the bleeding. Another
inmate brought Mr. Smith a towel, but he could not get the bleeding to stop. Mr. Smith
told Defendant Davis that he “couldn’t believe they did [him] like that,” and Defendant
Davis told Mr. Smith to tell the guards that he hit his eye on his bunk.
Correctional Officer Andrew Cromer testified that the victim got his attention
through a window. The victim was holding a washcloth over his face. He told Officer
Cromer that he had hit his eye on his bunk and that he could not stop the bleeding. Officer
Cromer placed the victim in a holding cell while he called for medical assistance. Mr.
Smith testified that the “pain was excruciating[.]” Mr. Smith was taken to Meharry
Hospital before being transferred to Vanderbilt for immediate surgery. Mr. Smith was told
that he lost his vision in that eye. Doctors eventually removed Mr. Smith’s eye because
“the pain wouldn’t stop[.]” Mr. Smith testified that his knee, hip, and back were also
injured in the incident, and he had to walk with a cane.
Lieutenant David Hodges photographed the victim’s injured eye. He testified that
Mr. Smith’s “eyeball was squashed” “like a grape[.]” Lieutenant Hodges told the victim
that he was “never going to see out of that eye again” and that he should disclose who had
caused his injuries. The victim then disclosed the defendants’ names. Officer Cromer
viewed video footage of the area outside the bathroom to “verify [the victim’s] statements.”
There were no cameras inside the bathroom, where the assault occurred, but Officer
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Cromer confirmed that the video showed the victim and all three defendants enter the
bathroom around the time of the assault.1
Officer Cromer explained that it was common for inmates to refuse to disclose fights
and for inmates to clean up after fights to avoid detection. After the victim was transported
to a hospital by ambulance, the three defendants were identified and placed in separate
holding cells. Lieutenant Hodges did not see any injuries on any of the defendants, and he
photographed each of the defendants’ faces.
Defendant Jones testified that he was watching television in the day room on the
day of the assault. He went to wake up the victim because Mr. Smith always kept the
remote control. Defendant Jones testified, “I wake him up in the morning and he give[s] it
to me and he’ll go back to sleep.” On that morning, Mr. Smith denied having the remote.
Defendant Jones asked someone else for the remote, and that person told him that Mr.
Smith had it. Defendant Jones again woke up Mr. Smith and asked him, and Mr. Smith
denied having it. Defendant Jones went back to the day room. A couple of minutes later,
Mr. Smith got “in [his] face” about having woken him up. Defendant Jones was shocked
and scared because Mr. Smith was much bigger than him. Defendant Jones tried to get
away from Mr. Smith, and Mr. Smith followed him into the bathroom. Defendant Jones
testified that Mr. Smith began hitting him once inside the bathroom. He testified that Mr.
Smith put him in a headlock, and they continued to struggle. They fell to the ground, and
Defendant Jones supposed that Mr. Smith injured his eye when they fell. He testified that
Defendant Bonds pulled Mr. Smith off of him. Defendant Jones testified that Defendant
Bonds and Defendant Davis were “trying to calm [Mr. Smith] down.”
Analysis
Sufficiency of the Evidence
Defendants Jones and Bonds argue that the evidence was insufficient to support
their convictions. Specifically, Defendant Jones contends that the evidence does not show
that he caused injuries to the victim or that he is criminally responsible for the acts of
another. Defendant Bonds contends that there was insufficient proof to establish that they
acted in concert because a third defendant, Mr. Davis, was not convicted of the offense,
which requires that a defendant act in concert with “two or more other persons.” The State
responds that the evidence was sufficient to support the convictions. We agree with the
State.
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We are unable to view the video recording that was admitted as an exhibit at trial; however, the
parties do not dispute that the video shows the victim and defendants enter and exit the bathroom.
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When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
443 U.S. 307, 319 (1979). The jury’s verdict replaces the presumption of innocence with
one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence
introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d 247,
277 (Tenn. 2002). “‘A guilty verdict by the jury, approved by the trial court, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the
prosecution’s theory.’” Id. (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).
Therefore, the prosecution is entitled to the “‘strongest legitimate view of the evidence and
to all reasonable and legitimate inferences that may be drawn therefrom.’” State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v. Smith, 24 S.W.3d 274, 279
(Tenn. 2000)). Questions concerning the “‘credibility of the witnesses, the weight to be
given their testimony, and the reconciliation of conflicts in the proof are matters entrusted
to the jury as the trier of fact.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012)
(quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). It is not the role of this
Court to reweigh or reevaluate the evidence, nor to substitute our own inferences for those
drawn from the evidence by the trier of fact. Id. The standard of review is the same whether
the conviction is based upon direct evidence, circumstantial evidence, or a combination of
the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009).
Defendants were convicted of aggravated assault in concert with two or more other
persons. A person commits the offense of aggravated assault who intentionally or
knowingly “causes bodily injury to another” and the assault results in serious bodily injury.
T.C.A. §§ 39-13-101(a)(1), -102(a)(1)(A)(i). “Serious bodily injury” includes “[e]xtreme
physical pain[,]” “[p]rotracted or obvious disfigurement[,]” and “[p]rotracted loss or
substantial impairment of a function of a bodily member, organ or mental faculty[.]” Id. §
39-11-106(a)(36). 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.” Id. § 39-11-302(a). A person “acts knowingly with respect
to the conduct or to the circumstances surrounding the conduct when the person is aware
of the nature of the conduct or that the circumstances exist.” Id. § 39-11-302(b).
Furthermore, “[a] person acts knowingly with respect to a result of the person’s conduct
when the person is aware that the conduct is reasonably certain to cause the result.” Id.
Tennessee Code Annotated section 39-12-302 provides that “[a] crime of force or
violence committed while acting in concert with two (2) or more other persons shall be
classified one (1) classification higher than if it was committed alone.” Ordinarily,
aggravated assault that results in serious bodily injury is a Class C felony. Id. § 39-13-
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102(e)(1)(A)(ii). However, when committed while acting in concert with two or more
persons, it is a Class B felony. Id. § 39-12-302(a). The question of whether one defendant
is acting in concert with another is one of fact for the jury. Rice v. State, 475 S.W.2d 178,
179 (Tenn. Crim. App. 1971). This Court has likened “acting in concert” with criminal
responsibility in the context of a case involving the commission of a robbery. State v.
Lenardo DeQayne Spencer, Reginald Tyrone Baxter, Jr., and Deandre Jajuan Dean, No.
M2016-01219-CCA-R3-CD, 2017 WL 2800147, at *6 (Tenn. Crim. App. June 28, 2017)
(citing T.C.A. § 39-11-402(2)) (explaining that a defendant “acts in concert with another
if the defendant acts ‘with intent to promote or assist the commission of the offense, or to
benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts
to aid another person to commit the offense.’”), perm. app. denied (Tenn. Nov. 16, 2017).
In the light most favorable to the State, the evidence introduced at trial showed that
Defendant Jones woke the victim on the morning of the assault, demanding the remote
control for the television. Shortly thereafter, Defendant Jones and the victim entered the
bathroom around the same time and continued to argue. The victim noticed Defendant
Bonds standing near the sinks as Defendant Davis entered the bathroom and pushed the
victim, saying, “that’s my homeboy.” Defendant Jones then punched the victim’s eye. All
four men began to tussle, and Defendant Bonds grabbed the victim from behind and held
his arms behind his back while Defendants Jones and Davis continued to hit and kick the
victim. The victim testified that he was unable to stop the bleeding and that the pain was
“excruciating.” He was transported to Meharry Hospital before being transferred to
Vanderbilt, where he underwent immediate surgery and ultimately lost his eye.
Defendant Jones argues that the only evidence implicating him was the testimony
of the victim and that the victim was not credible because he initially lied about how he
sustained his injuries. The determination of issues of witness credibility and the resolution
of conflicts in testimony rest squarely within the province of the jury. Bland, 958 S.W.2d
at 659. We do not revisit the jury’s determinations with respect to those issues on appeal.
See, e.g., Wagner, 382 S.W.3d at 297.
Defendant Bonds argues that the evidence was insufficient to support his conviction
because the jury did not reach a unanimous verdict as to Defendant Davis. He contends
that only two people were convicted of an offense that requires three people acting in
concert. Defendant Bonds’ argument is essentially an argument against inconsistent
verdicts. Inconsistent verdicts may occur in trials of multiple defendants and in trials of
multiple charges against a single defendant. Appellate courts “will not upset a seemingly
inconsistent verdict by speculating as to the jury’s reasoning if [the court is] satisfied that
the evidence establishes guilt of the offense upon which the conviction was returned.”
Wiggins v. State, 498 S.W.2d 92, 94 (Tenn. 1973).
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We conclude that there was sufficient evidence from which a rational jury could
have concluded that the three charged defendants were acting in concert while committing
the aggravated assault. In a similar case, a panel of this Court upheld a defendant’s
conviction for aggravated assault in concert where an inmate attacked an officer and was
soon joined by another inmate and the defendant. State v. Kendrick Rivers, No. W2018-
00861-CCA-R3-CD, 2019 WL 3776026, at *5 (Tenn. Crim. App. Aug. 9, 2019), no perm.
app. filed. In that case, the entire attack lasted 30 seconds. Here, the victim testified that
Defendant Bonds held him while Defendants Jones and Davis hit and kicked him. The
evidence was sufficient to establish that the defendants acted with the intent to assist in the
commission of an aggravated assault.
Admission of Photograph
Defendant Bonds argues that the trial court abused its discretion by admitting into
evidence a photograph of the victim’s injured eye. Defendant asserts that the photograph
was more prejudicial than probative and that it was unnecessary because the victim’s
testimony satisfied the “extreme pain and protracted disfigurement” elements of the
offense. The State responds that the trial court properly admitted the photograph into
evidence.
Initially, we observe that Defendant Bonds did not raise this issue in a pretrial
motion or otherwise object to the admission of the photograph of the victim’s eye at trial.
The record shows that Defendant Jones filed a motion in limine seeking to exclude from
evidence “any photographs of the alleged victim[’]s immediate injuries as the probative
value of such evidence is far outweighed by the prejudicial effect it will have on the
members of the jury.” The record does not include a similar motion filed by Defendant
Bonds. At a pretrial hearing on Defendant Jones’ motion, defense counsel for Defendant
Jones argued that a photograph of the victim’s “bloody eye” was unnecessary to establish
that the victim suffered severe bodily injury. The trial court ruled that the photograph of
the victim’s eye was admissible, concluding that although the photograph was “pretty
graphic,” it was relevant to show “the serious nature of the victim’s bodily injuries. . . .”
In his brief on appeal, Defendant Bonds states that “the victim was asked to identify
and show a picture of his damaged eyeball” and that “[t]rial counsel for [Defendant] Bonds
objected to this viewing as a violation of T[enn.] R[.] E[vid.] 403.” However, Defendant
Bonds does not cite to the record, and a transcript of the trial contradicts this assertion.
Following the trial court’s denial of Defendant Jones’ motion in limine, a photograph of
the victim’s injured eye was admitted without objection at trial. The State then asked the
trial court for permission to have the victim “show the jury the injury to his eye now[,]”
and trial counsel for Defendant Jones objected, stating, “[t]hey saw the picture. I don’t
know why they would need to do that.” The trial court allowed the victim to remove his
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eyepatch at trial and show the jury his eye, finding that it was relevant to show the victim’s
“protracted disfigurement.” Although Defendant Bonds did not file a pretrial motion or
otherwise object to the admission of the photograph at trial, he raised the issue in his
amended motion for new trial. Therefore, we will consider the merits of the issue.
The admissibility of photographic evidence lies within the sound discretion of the
trial court, and its ruling on admissibility will not be disturbed on appeal absent a showing
of an abuse of that discretion. State v. Carruthers, 35 S.W.3d 516, 576-77 (Tenn. 2000);
State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); State v. Banks, 564 S.W.2d 947,
949 (Tenn. 1978) (quoting Tenn. R. Evid. 403 Advisory Comm. Cmts.). Evidence is
relevant if it has “any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence.” Tenn. R. Evid. 401. Relevant evidence “may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” Tenn. R. Evid. 403. To decide whether visual evidence is admissible,
the court determines the relevance of the evidence and weighs its probative value against
any undue prejudice. Id. It is deemed “unfairly prejudicial” if it has “an undue tendency
to suggest decision on an improper basis, commonly, though not necessarily, an emotional
one.” Id.Graphic, gruesome, or even horrifying photographs of crime victims may be
admitted into evidence if they are relevant to some issue at trial and their probative value
is not substantially outweighed by their prejudicial effect. Banks, 564 S.W.2d at 949-51.
On the other hand, “if they are not relevant to prove some part of the prosecution’s case,
they may not be admitted solely to inflame the jury and prejudice them against the
defendant.” Id. at 951 (citing Milam v. Commonwealth, 275 S.W.2d 921 (Ky. 1955)). “As
a general rule, where medical testimony adequately describes the degree or extent of an
injury, gruesome and graphic photographs should not be admitted.” State v. Collins, 986
S.W.2d 13, 21 (Tenn. Crim. App. 1998).
Here, the trial court admitted one color photograph of the victim’s injured eye.
While the photograph of the victim’s eye is somewhat graphic, we agree with the trial court
that it was relevant to establish the severity of the victim’s injury. We also conclude that
the probative value was not substantially outweighed by the danger of unfair prejudice.
Despite the victim’s testimony that he suffered extreme pain and loss of vision, the
photograph was properly admitted. “‘[P]hotographs are not necessarily rendered
inadmissible because they are cumulative of other evidence or because descriptive words
could be used.’” State v. Willis, 496 S.W.3d 653, 728 (Tenn. 2016) (quoting State v. Derek
Williamson, No. M2010-01067-CCA-R3-CD, 2011 WL 3557827, at *9 (Tenn. Crim. App.
at Jackson, Aug. 12, 2011), perm. app. denied (Tenn. Dec. 14, 2011)). “Thus, the fact that
the State could have made its case using only descriptive words is a consideration in
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balancing the probative value against the prejudicial effect, but does not mandate exclusion
of the photographs.” Banks, 564 S.W.2d at 951. The trial court did not abuse its discretion
by admitting the photograph into evidence.
Closing Argument
Defendant Bonds contends that the prosecutor improperly commented on his
constitutional right to remain silent during closing arguments. The State argues that
Defendant Bonds “opened the door” to a rebuttal comment by the prosecutor and that, in
any event, the prosecutor’s comment during rebuttal closing argument was not a comment
on Defendant’s pretrial silence. We agree with the State.
The scope of closing argument is subject to the trial court’s discretion and will not
be reversed absent a clear showing of abuse of discretion. See State v. Cauthern, 967
S.W.2d 726, 737 (Tenn. 1998); Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). It has
long been recognized that closing argument is a valuable privilege that should not be
unduly restricted. See State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001) (citing State v.
Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994)). However, closing argument “must be
temperate, predicated on evidence introduced during the trial, relevant to the issues being
tried, and not otherwise improper under the facts or law.” State v. Middlebrooks, 995
S.W.2d 550, 557 (Tenn. 1999). When determining whether an improper argument
constitutes reversible error, this Court considers whether the conduct was so improper or
the argument so inflammatory that it prejudicially affected the jury’s verdict. See
Middlebrooks, 995 S.W.2d at 559.
It is well-established that a defendant may not be penalized at trial for the exercise
of his constitutional right to remain silent after arrest. Doyle v. Ohio, 96 S. Ct. 2240, 2245
(1976); Braden v. State, 534 S.W.2d 657, 661 (Tenn. 1976). Generally, the prosecution
may not comment at trial that a defendant invoked the right to remain silent in the face of
accusation. Braden, 534 S.W.2d at 660; Ware v. State, 565 S.W.2d 906, 908 (Tenn. Crim.
App. 1978). However, a comment on a defendant’s silence may be harmless error that
does not require a mistrial. See Honeycutt v. State, 544 S.W.2d 912, 917-18 (Tenn. Crim.
App. 1976).
During his closing argument, counsel for Defendant Bonds criticized the
investigation of the case, stating that Officer Cromer “did not ask anybody but these three
witnesses, these three defendants here what happened. He didn’t question anyone else.”
During a bench conference, the prosecutor argued that she should be allowed to respond to
defense counsel’s statement. The trial court noted that Defendant Bonds had opened the
door, and the court ruled that the State had a right to respond. The trial court noted, “she
is not going to say anything about what was said or not said. I think the only thing that she
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is going to say is that after talking to all three they were charged.” During the State’s
rebuttal argument, the prosecutor said, “[counsel for Defendant Bonds] said that the
investigators asked everybody what happened in this case and after asking everybody in
this case what happened these three defendants got charged.”
On appeal, Defendant Bonds contends that the prosecutor’s comment implied that
Defendant gave a pretrial statement, arguing that “[t]he effect [of which] was to make it
appear that [Defendant] Bonds offered some sort of testimonial proof which proof was
never offered [at trial].” As the trial court noted, Defendant Bonds “opened the door” to
the prosecutor’s comment during rebuttal closing argument by commenting during his
closing argument that Officer Cromer interviewed the three defendants. Counsel for
Defendant Bonds also elicited testimony during his cross-examination of Officer Cromer
that he “only talked to the people [the victim] said were involved.”
We note that “prosecutorial responses to defense arguments are clearly permitted[.]”
State v. Jackson, 444 S.W.3d 554, 590 (Tenn. 2014); see State v. Sutton, 562 S.W.2d 820,
823-24 (Tenn. 1978) (“Where the criminal defendant raises an issue in his defense, he
cannot complain of references to the issue by the prosecution, or argument on that issue,
so long as the argument is fairly warranted by the facts and circumstances of the case.”).
Here, the prosecutor’s comment was merely a response to Defendant Bonds’ comment
during closing argument rather than a comment on Defendant’s pretrial silence or his right
not to testify. Accordingly, we conclude that the prosecutor’s comment was not of such a
character that the jury would necessarily have taken it to be a comment on Defendant’s
failure to testify. See Jackson, 444 S.W.3d at 588.
CONCLUSION
Based on the foregoing reasons, we affirm the judgments of the trial court.
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TIMOTHY L. EASTER, JUDGE
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