State v. Bristol

• Decision Date: 07 October 2022
• Docket Number: M2019-00531-SC-R11-CD
• Citation: 654 S.W.3d 917
• Parties: STATE of Tennessee v. Lynn Frank BRISTOL
• Court: Tennessee Supreme Court

654 S.W.3d 917

STATE of Tennessee

v.Lynn Frank BRISTOL

No. M2019-00531-SC-R11-CD

Supreme Court of Tennessee, AT NASHVILLE.

April 6, 2022 Session

FILED October 7, 2022

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Benjamin A. Ball, Senior Assistant Attorney General; Sophia S. Lee, Senior Assistant Attorney General; and Craig Northcott, District Attorney General, for the appellant, State of Tennessee.

Thomas E. Parkerson, Murfreesboro, Tennessee, for the appellee, Lynn Frank Bristol.

Sarah K. Campbell, J., delivered the opinion of the court, in which Roger A. Page, C.J., and Sharon G. Lee, Jeffrey S. Bivins, and Holly Kirby, JJ., joined.

Sarah K. Campbell, J.

In this appeal, we clarify the scope of an appellate court's limited discretionary authority to consider unpreserved and unpresented issues. Appellee Lynn Frank Bristol was convicted on two counts of aggravated sexual battery. Bristol appealed his convictions to the Court of Criminal Appeals. That court determined Bristol was not entitled to relief on the issues presented, but it reversed his convictions and remanded the case for a new trial based on a supposed problem with the written jury instructions that Bristol had not raised, that no party had an opportunity to address, and that turned out to be nothing more than a clerical error by the trial court clerk's office. Because the Court of Criminal Appeals abused its discretion by granting relief on an unpreserved and unpresented issue without giving the parties notice and an opportunity to be heard on the matter, we reverse the Court of Criminal Appeals’ decision on the jury-instruction issue and reinstate Bristol's convictions.

I.

In 2015, a Coffee County grand jury returned a two-count indictment against Lynn Frank Bristol charging him with one count of aggravated sexual battery, Tenn. Code Ann. § 39-13-504 (2014), and one count of child rape, Tenn. Code Ann. § 39-13-522 (2014). The victim was Bristol's minor stepdaughter. The proof at trial showed that, when his stepdaughter was ten years old, Bristol told her to remove her pants and underwear and "used his fingers to spread" her labia. When she was twelve years old, Bristol rubbed her "private area" repeatedly while giving her a massage.

At the close of evidence, the trial court delivered its oral jury charge. Counsel for Bristol and the State, who had an opportunity to review and propose changes to the written jury instructions, accepted and did not object to that charge. The jury convicted Bristol of aggravated sexual battery in count one and the lesser-included offense of aggravated sexual battery in count two. The trial court sentenced Bristol to ten years for each conviction and directed that the sentences be served consecutively for a total effective sentence of twenty years. Bristol moved for a new trial on various grounds, which notably did not include the ground on which the Court of Criminal Appeals ultimately granted relief—that the written jury instructions omitted certain critical instructions that were included in the oral jury charge. The trial court denied Bristol's motion.

Bristol appealed his convictions to the Court of Criminal Appeals, raising various issues for review. State v. Bristol , No. M2019-00531-CCA-R3-CD, 2021 WL 1697914, at *4 (Tenn. Crim. App. Apr. 29, 2021), perm. app. granted (Tenn. Nov. 19, 2021).¹ Again, he failed to raise any argument about a discrepancy between the trial court's written and oral jury instructions.

The Court of Criminal Appeals heard argument in December 2020. Neither the court nor the parties raised the jury-instruction issue. Two months later, the appellate court ordered the trial court clerk to supplement the appellate record with transcripts of "the jury charge, ... the return of the jury's verdict, ... closing arguments," and "any discussion regarding election of offense[s]." The order stated that the requested supplementation was "necessary and essential for a complete review of the issues raised on appeal."

In April 2021, after the trial court supplemented the record, the Court of Criminal Appeals issued its opinion. The court held that Bristol was not entitled to relief on the issues he presented. Even so, the court reversed the trial court's judgments and remanded the case for a new trial. It did so by finding plain error in the trial court's written jury instructions, notwithstanding that Bristol had not raised that issue and the parties had received no notice that the court planned to consider that issue, let alone an opportunity to address it.

The court found plain error based on a purported discrepancy between the written and oral jury instructions. The court explained that certain instructions and definitions were "noticeably absent" from the written jury instructions contained in the original appellate record. Bristol , 2021 WL 1697914, at *12. That absence had prompted the court to order the trial court to supplement the record with a transcript of the oral jury charge. When the court compared the transcript of the oral jury charge in the supplemental record with the written jury instructions in the original appellate record, it found that the two were "vastly different and d[id] not track one another." Id. at *13. For example, while the oral jury instructions included definitions of "rape of a child, attempted rape of a child, attempted aggravated sexual battery, attempted sexual battery, sexual battery, child abuse, or neglect," the record lacked "any evidence that the trial court submitted a written definition" of those terms. Id.

The State timely petitioned for rehearing. The petition explained that the written jury instructions included in the original appellate record apparently "omitted 16 consecutive pages" and that these omitted pages contained the purportedly missing instructions on which the court based its plain-error determination. The State attached to its petition a copy of the written jury instructions it had obtained from the trial court clerk's file, which included the missing instructions. The State requested that the Court of Criminal Appeals remand the case to the trial court to determine whether the written jury instructions contained in the original appellate record accurately reflected those actually submitted to the jury at trial and, if not, to supplement the appellate record accordingly.

The Court of Criminal Appeals directed Bristol to respond to the State's rehearing petition. Bristol acknowledged that the trial court's oral jury charge was "similar" to the written jury instructions in the trial court clerk's file, but he argued that the trial court's certification of the original appellate record conclusively settled any discrepancy between the original appellate record and the trial court clerk's file.

A few days after receiving Bristol's response, the Court of Criminal Appeals issued an order acknowledging "differences regarding whether the record accurately discloses what occurred in the trial court" and "direct[ing] the trial court, pursuant to Tennessee Rule of Appellate Procedure 24(e), to prepare a supplemental record consisting of the entire written jury charge submitted to the jury."² The trial court clerk then certified and submitted a second supplemental record containing the same version of the written jury instructions that was attached to the State's rehearing petition.

The Court of Criminal Appeals denied the State's rehearing petition, reasoning that this second supplemental record certified by the trial court clerk did "not reflect that the trial court ha[d] settled the differences regarding the accuracy [of the written jury instructions] contained in the record." Because the trial court had provided "no explanation for the differences" between the written instructions included in the second supplemental record and those in the original appellate record, the Court of Criminal Appeals concluded that the State had failed to show that its earlier opinion "incorrectly state[d] the material facts established by the evidence and set forth in the record," as required to justify rehearing under Tennessee Rule of Appellate Procedure 39(a).

The State sought permission to appeal to this Court. We granted review and asked the trial court to clarify which version of the written jury instructions accurately reflected those provided to the jury at trial. The trial court explained that the written jury instructions transmitted with the original appellate record were incorrect due to a copying error and that the instructions contained in the second supplemental record accurately reflected the written instructions provided to the jury.

II.

The State contends that the Court of Criminal Appeals erred by granting relief on an unpreserved and unpresented issue without giving the parties fair notice and an opportunity to be heard on that issue. As explained below, an appellate court has limited discretionary authority to review unpreserved and unpresented issues. We thus review the Court of Criminal Appeals’ consideration of the jury-instruction issue for abuse of discretion. A court abuses its discretion when it "strays beyond the applicable legal standards or when it fails to properly consider the factors customarily used to guide the particular discretionary decision." State v. McCaleb , 582 S.W.3d 179, 186 (Tenn. 2019) (quoting Lee Med., Inc. v. Beecher , 312 S.W.3d 515, 524 (Tenn. 2010) ).

We begin our analysis by reiterating the general principles that ordinarily limit appellate review to issues that a party preserves below and presents on appeal. We then discuss the scope of an appellate court's discretionary authority to consider unpreserved and unpresented issues and conclude that the Court of Criminal Appeals abused its discretion by considering the jury-instruction issue without giving the parties notice and an opportunity to be heard. And because the current appellate record forecloses any argument that the...