State of Tennessee v. Vanessa Coleman ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 21, 2014
STATE OF TENNESSEE v. VANESSA COLEMAN
Appeal from the Criminal Court for Knox County
No. 86216D Jon Kerry Blackwood, Judge
No. E2013-01208-CCA-R3-CD - Filed December 9, 2014
In this case both victims were sexually assaulted. Accordingly, we will identify them by their
initials. Defendant, Vanessa Coleman, was one of four defendants charged by presentment
for offenses which occurred in January 2007, involving the deaths of the victims, C.N. and
C.C. In her first trial, Defendant was acquitted of all charges alleging the murder,
kidnapping, and rape of victim C.N. She was convicted of several counts of the lesser-
included offense of facilitation of charges alleging the murder, kidnapping, and rape of
victim C.C. Defendant was granted a new trial by the trial court based upon structural error
in the proceedings of the first trial. Following the second trial, a jury found Defendant guilty
of the following offenses against victim C.C.: three counts of facilitation of first degree
murder, one count of facilitation of second degree murder, two counts of facilitation of
aggravated kidnapping, six counts of facilitation of rape, and one count of facilitation of
misdemeanor theft. Following a sentencing hearing, the trial court merged Defendant’s
convictions for facilitation of first degree murder and second degree murder into one
conviction and imposed a sentence of 25 years for that conviction. The trial court also
merged Defendant’s two convictions for facilitation of aggravated kidnapping and imposed
a sentence of six years to be served consecutively to Defendant’s 25-year sentence. The trial
court merged Defendant’s six convictions for facilitation of rape into three convictions and
imposed a sentence of four years for each conviction, to be served concurrently with each
other but consecutively to Defendant’s remaining sentences. For Defendant’s facilitation of
misdemeanor theft conviction, the trial court imposed a sentence of six months to be served
concurrently with the remaining sentences. Thus, Defendant received a total effective
sentence of 35 years for her convictions. In this appeal as of right, Defendant raises the
following issues for our review: 1) whether the evidence at trial was sufficient to sustain her
convictions; 2) whether the trial court should have dismissed the presentment because
Defendant was subpoenaed to testify before a federal grand jury before the filing of the
presentment in this case; 3) whether the trial court erred by admitting testimony of
Defendant’s statements made during unrecorded interviews; 4) whether the trial court should
have excluded photographs of the victims’ bodies; 5) whether all of Defendant’s convictions
for facilitation of rape should have been merged into one conviction; and 6) whether the trial
court erred by imposing consecutive sentences. After a thorough review of the record before
us, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
T HOMAS T. W OODALL, P.J., delivered the opinion of the court, in which R OGER A. P AGE, J.
joined. D. K ELLY T HOMAS, J R., J., wrote a separate concurring opinion.
Theodore H. Lavit; Joseph R. Stewart; Cameron Griffith, Lebanon, Kentucky; and Russell
T. Greene, Nashville, Tennessee, for the appellant, Vanessa Coleman.
Herbert H. Slatery, III, Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Randall Eugene Nichols, District Attorney General; Leland Price and Ta Kisha Fitzgerald,
Assistant District Attorneys General, for the appellee, the State of Tennessee.
OPINION
Trial
In portions of this opinion we refer to persons only by their last names. We mean no
disrespect in doing so. As noted above, Defendant was ultimately convicted of offenses
involving the death, kidnapping, and rape of C.C. and acquitted of all offenses alleging the
death, kidnapping, and rape of C.N. On Saturday, January 6, 2007, both C.C. and C.N. left
C.C.’s friend’s apartment in C.C.’s silver Toyota 4Runner sometime after 9:00 p.m., C.C.’s
mother testified that C.C. called at 12:35 a.m. on Sunday and told her father that she had
decided to return to her parent’s house instead of staying at her friend’s apartment that night.
C.C. told her parents that she was going to finish watching a movie with C.N. and then go
home around 3:00 a.m. C.C.’s mother testified that she tried to call her daughter when she
did not return home, but she was unable to contact her. C.C.’s father and brother called the
police after they located C.C.’s 4Runner near Cherry Street on Sunday afternoon.
At approximately 12:30 a.m. on Sunday, January 7, 2007, Xavier Jenkins, a driver for
Waste Connections, was on Chipman Street in Knoxville waiting for his co-workers to arrive
when he saw a house that “seemed a little busy.” He testified that the lights were on in the
house, and he saw a silver 4Runner parked outside with its lights on. He then saw the
4Runner drive by with four black males inside. The driver gave him a “mean mug” look as
he drove past him, which made Jenkins nervous. Jenkins testified that he could not see the
four men’s faces, but he saw their silhouettes. When Jenkins returned from his work route
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between 6:30 and 7:00 a.m., he observed the 4Runner in the parking lot for Waste
Connections, facing toward some railroad tracks.
Jerome Arnold lived at 2124 Chipman Street in January 2007. He testified that he was
watching television at 1:45 a.m. on January 7 when he heard “three distinct pops a short
distance away.” Arnold testified “[t]here [were] three fairly evenly spaced pops, and that was
it.” The sound came from the northeast, and it “wasn’t terribly far away.” His house was
200 feet from a train track. At 7:45 a.m., Roy Thurman, a sandblaster, arrived for work and
saw “some smoke come up back there,” around a set of train tracks near his job site. J.D.
Ford, a locomotive engineer for Norfolk Southern Railway, testified that he arrived at work
around 8:00 a.m. on January 7, 2007. Ford testified that he saw something burning beside
the tracks near Cherry Street. He testified that it appeared to be “the silhouette of a body.”
As the train got closer, Ford could tell that it was a body, and the legs were not burned. Ford
called his dispatcher. The body was subsequently identified as victim C.N.
Lieutenant Keith Debow from the Knoxville Police Department testified that on
Tuesday, January 9, 2007, he assisted in the execution of a search warrant of the residence
at 2316 Chipman Street. Inside the kitchen there was a trash can that was “oddly shaped.”
He believed that a person might be inside the trash can. Lieutenant Debow and another
officer removed the lid from the trash can and found the body of victim C.C. inside. C.C.’s
body was transported by ambulance to the forensic center while still inside the trash can.
Chief Medical Examiner Darinka Mileusnic-Polchan was present at the Chipman Street
address when C.C.’s body was transported.
Dr. Mileusnic-Polchan conducted autopsies of both victims in this case. She testified
that both victims were bound with strips of fabric from some floral bedding. Linda
Littlejohn, of the Tennessee Bureau of Investigation (TBI) Crime Lab, testified that the fabric
removed from both victims’ bodies was consistent in color and pattern. C.C. was tied up in
a fetal position, which is the position in which she died. Her body had been placed inside
five layers of trash bags inside the trash can. Her face was covered with a white trash bag.
Dr. Mileusnic-Polchan concluded that C.C.’s cause of death was positional and mechanical
asphyxiation, meaning that her breathing had been obstructed by both the position of her
body and the plastic trash bag. She testified that there was no indication that C.C. suffered
strangulation (including petechia or injuries to C.C.’s neck). There was also no evidence of
defensive injuries. The manner of C.C.’s death was homicide.
Dr. Mileusnic-Polchan observed “tremendous trauma” to C.C.’s anogenital area,
including bruising around her anus and vagina. The most significant injury was to the area
around the vaginal opening, where there was deep bruising hematoma formation and blood
collecting deep in the tissue. Dr. Mileusnic-Polchan determined that the injury occurred
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between one and two hours prior to C.C.’s death. She testified that there could have been
other injuries, but “the big trauma on top of possibly old trauma was so overwhelming” that
it was difficult to determine. There was also injury to C.C.’s cervix, and she had bruising and
carpet burns on her lower back and upper buttocks. Dr. Mileusnic-Polchan testified that
there was evidence of injuries to C.C.’s head that could have caused unconsciousness, but
she could not conclude whether C.C. actually suffered unconsciousness. She testified that
the injury to the head was not sufficient to disable the victim long-term or cause the victim’s
death. Seventeen photographs taken of C.C.’s body, showing her injuries, were admitted at
trial. Latent fingerprints were collected from the garbage bags in which C.C.’s body was
found, and the prints matched the right palm of co-defendant Lemaricus Davidson.
Daphne Sutton began dating co-defendant Lemaricus Davidson in October, 2006.
Around the end of October or early November, they moved in together in the residence at
2316 Chipman Street. Sutton testified that Davidson’s brother, Letalvis Cobbins (another
co-defendant), and others including George Thomas (another co-defendant), Defendant, and
Stacy Lawson traveled from Kentucky to Knoxville to visit several times in late 2006, and
they stayed at the Chipman Street residence. Sutton testified that she and Davidson slept in
the front bedroom. Cobbins and Defendant slept in the back bedroom, which was connected
to the front bedroom by a bathroom. George Thomas slept in the living room. There were
blankets hanging in the doorways between the bedrooms and living room.
On Friday, January 5, 2007, Sutton left the residence after she and Davidson got into
an argument and Davidson slammed her against a wall. She walked to a gas station on
Cherry Street and called Cassie Suttles to pick her up. On Sunday, January 7, Sutton returned
to the Chipman Street residence because Davidson called her and told her to come over and
get some new clothes he had for her. She testified that she tried to go through the front
bedroom to the bathroom to get some of her belongings, but Davidson grabbed her and
prevented her from going through the bedroom. She testified that Cobbins was sitting in a
chair with his head down in the living room beside the kitchen door, and George Thomas was
sitting in another chair rolling a marijuana cigarette. Sutton observed a kitchen chair in the
front bedroom beside the bathroom door, which was unusual. The bathroom door was
closed, and Sutton did not see Defendant. She could hear someone inside the bathroom.
Davidson gave Sutton a bag of clothes. When she returned to Suttles’ apartment, Sutton
looked through the clothes and realized that they were not new, and she called Davidson.
Davidson later drove to Suttles’ apartment in an SUV, and took back some of the clothes.
The following day, January 8, 2007, Davidson returned to Suttles’ apartment and stayed there
overnight. On Tuesday, January 9, 2007, Sutton learned that a body had been found inside
the Chipman Street residence. She drove Davidson to a park and dropped him off. Davidson
had a handgun in his jacket pocket.
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Jody Long testified that in January 2007, Vince Wernimont asked her “to give some
friends a ride that were in fear of [sic] their life.” Wernimont gave Long morphine pills and
asked her to drive Defendant, Cobbins, and Thomas to Kentucky. Defendant rode in the
front passenger seat and she was “very quiet.” Long dropped them off at Defendant’s
grandmother’s house.
Stacy Lawson testified that in January 2007, she lived in Lebanon, Kentucky. She was
friends with Defendant, whom she met through Cobbins. Lawson was dating Thomas.
Lawson traveled to Knoxville with Defendant, Cobbins, and Thomas on December 28, 2006.
She testified that on January 1, 2007, she had an altercation with Davidson. She testified that
“there was a lot of tension in the house.” Davidson threatened her with a rifle. Lawson
decided to leave Knoxville. She asked Defendant if she wanted to return to Kentucky with
her, and Defendant stated that she wanted to stay with Cobbins. Lawson left the following
day.
Lawson saw Defendant, Cobbins, and Thomas again at Natosha Hays’s house after
the three returned to Kentucky. Lawson testified that they “looked scared.” Later, when
Lawson was alone with Defendant, she asked Defendant how she got back to Kentucky, and
Defendant responded, “I don’t know what you’re talking about, I came back with you.”
Lawson testified that Defendant “wasn’t her normal self” and that “everybody was kind of
on edge and nervous.”
Natosha Hays testified that Defendant called her in January 2007, and told her that
she, Cobbins, and Thomas were returning to Kentucky from Tennessee. Sometime later, the
three arrived unannounced. Hays was asleep on her couch when she heard someone banging
on the windows and door. Hays testified that Defendant “didn’t appear any different than
any other time.” The following day, the three were arrested at Hays’s house.
Detective Nevil Norman, of the Knox County Sheriff’s Department, testified that on
Thursday, January 11, 2007, he assisted in the arrest of Defendant, Cobbins, and Thomas in
Lebanon, Kentucky. Detective Norman interviewed Defendant at 1:00 p.m. that afternoon
at the Lebanon Police Department. The statement was audio recorded, but the quality was
bad. During the interview, Defendant “was just normal, nothing unusual about her.” The
audio recording and a transcript of the interview were admitted at trial. Defendant stated that
she and Cobbins had not been to Knoxville since returning to Kentucky on January 2, 2007.
Defendant was confronted with officers’ knowledge that her statement was untrue, and
Defendant denied any involvement in the offenses.
Special Agent Bernard Waggoner, of the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF), testified that he assisted in the arrest of Defendant, Cobbins, and Thomas
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on January 11, 2007, in Lebanon, Kentucky. Agent Waggoner also assisted in a search of
Natosha Hays’ residence, where the defendants were arrested.
Agent Waggoner interviewed Defendant on January 17, 2007, when she appeared
before a federal grand jury in Knoxville pursuant to a subpoena. Defendant’s mother was
present for the interview in the U.S. Attorney’s Office prior to the grand jury testimony. The
interview began just after 9:00 a.m. Agent Waggoner testified that the interview was not
recorded, but that he took notes. He testified as follows about Defendant’s statement:
She goes further on and says that on Saturday night, Lemaricus,
George Thomas and Letalvis Cobbins left together. And she doesn’t know
why. And she references E. And E has been identified as Eric Boyd. And
[Defendant] knows Eric Boyd.
And when Lemaricus Davidson and George Thomas and Letalvis
Cobbins come back, Lemaricus Davidson had a white female blindfolded,
and walked her into the house and took her into the front bedroom.
And then she said that George Thomas and Rome [Letalvis Cobbins]
had walked in first to the house, and then the girl was taken into the
bedroom. And she heard the girl say, stop, don’t, quit. And then
[Defendant] told me that she went to sleep. [Defendant] went to sleep.
She got up the next morning and cooked breakfast for Davidson,
Thomas and Cobbins on Sunday morning. And she said that she never saw
the girl again after she was brought in.
And on Sunday, [Defendant], Cobbins, Thomas and Davidson, rode
around in a Toyota 4Runner. And then she tells me that Stacy Lawson
came down on Tuesday a.m. to Knoxville, in the green Grand Am and took
[Defendant], Thomas and Cobbins back to Natosha Hays’s house in
Kentucky.
Agent Waggoner testified that Defendant told him that Davidson, Cobbins, and
Thomas “never talked about the crimes in front of her,” and that Davidson gave Defendant
“some clothes, a red purse, a red billfold and some Britney Spears perfume.” These were
items that had belonged to C.C. Defendant told Agent Waggoner that she saw Davidson
tying C.C. up on the bed in the front bedroom. She stated that on Monday, January 8, 2007,
she walked with Cobbins and Thomas to Vince Wernimont’s house, and that Thomas told
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her to lie about when they returned to Kentucky, telling Defendant to say that they returned
to Kentucky on January 2, 2007.
Agent Waggoner testified that he stepped outside the office and spoke to Defendant’s
mother. Defendant’s mother then spoke privately to Defendant and then told Agent
Waggoner that Defendant wished to speak to him again. When the interview resumed,
Defendant told Agent Waggoner that she saw Davidson kill C.C. “by snapping her neck.”
Defendant then began to cry.
Agent Waggoner then spoke to his supervisor, the U.S. Attorney, and the Knox
County homicide detective, and they began a second interview of Defendant at 11:40 a.m.
Agent Waggoner testified that he took notes during the second interview while the U.S.
Attorney and investigators questioned Defendant. During the second interview, Defendant
stated that Davidson, Cobbins, and Thomas left the Chipman Street residence at 1:00 a.m.
on Sunday, January 7, 2007. Davidson was armed with a revolver. Thomas and Cobbins
returned alone, and Davidson brought “the white female, [C.C.], into the house barefooted
and blindfolded with a blue bandana.” Davidson took C.C. into his bedroom. Agent
Waggoner testified,
And [Defendant] now says that she saw Davidson tie her up with a
wide strip of cloth in a chair. And then he – she saw the female victim laid
down – was laid down by Davidson on an air mattress, and her hands were
tied above her head. At this point, the – she tells me that the female victim
still had her clothes on.
And Davidson comes into the living room with Cobbins and
Thomas. And [Defendant] says that she asked about the girl and they
refused to tell her anything about it, and told her – told [Defendant] to go
into the back bedroom.
She said she also, at some point, saw Davidson pull some stickers off
of the Toyota 4Runner. And this – at this point, she tells me that they
would not let her – [Defendant] leave the house.
Defendant stated that Davidson, Cobbins, and Thomas went into the front porch area
of the house and talked. Davidson then went to his bedroom, and Defendant heard C.C. say,
“don’t, stop, quit.” Cobbins and Thomas were in the living room. She then stated that
Davidson and Thomas left in the 4Runner, and Cobbins stayed at the house with her.
Defendant stated that Davidson took a large floral comforter with him, and Defendant never
saw the comforter again. Defendant went into the bedroom and saw C.C. “still tied up and
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blindfolded.” Davidson and Thomas returned to the residence about 30 minutes later.
Thomas told Defendant that C.C. “was being quiet because if she went along with what they
were doing to her, she would be set free.” Davidson and Thomas put the clothes they were
wearing into the washing machine. Defendant stated that Davidson and Thomas “were both
acting nervous.” She asked them what was going on, and they refused to tell her. Defendant
heard Davidson tell Thomas, “well, that’s taken care of.” Defendant stated that Eric Boyd
then came to the residence and talked to Davidson, Thomas, and Cobbins for 10 to 15
minutes. Defendant saw the 4Runner parked down the street at the waste station.
Defendant saw Davidson lying beside C.C. on his bed. Davidson was using a cell
phone, and Defendant heard Davidson ask C.C. for a password. Defendant stated that she
slept with Cobbins in the back bedroom, and Thomas slept in the living room. The following
morning, Thomas told Defendant that Davidson “had slept with [C.C.], meaning that he’d
had sex with her.” When Defendant saw Davidson, he was only wearing shorts. Defendant
stated that Davidson left in the 4Runner several times during the day on Sunday. Cobbins
and Thomas checked in on C.C. throughout the day. At some point, Defendant took a drink
of water to C.C. C.C. was still tied up, “but they – somebody let her smoke cigarettes.”
Defendant stated that at some point on Sunday, all four of them left in the 4Runner, leaving
C.C. “alive in the house alone and tied up.”
On Sunday night, Davidson washed his bed sheets. Defendant saw Davidson tear up
a floral patterned sheet that matched the comforter she saw him take from the house the prior
day. Defendant saw Davidson walk C.C., who was not wearing any clothes from the waist
down, to a closet in the back bedroom when Daphne Sutton came to the house on Sunday.
Defendant was in the living room when she saw Davidson with C.C. in the back bedroom,
and she saw Davidson choke her and “snap[ ] her neck.” C.C. fell to the ground. Thomas
was in the back bedroom with Davidson and C.C. Davidson then took C.C. into the living
room, sprayed “something that smelled like bleach” in her mouth, and tied her body up into
a fetal position. Davidson then covered her in garbage bags. Defendant told Davidson that
she was going to call the police, and Davidson threatened to kill her if she called the police.
Defendant stated that she did not see it but was told that Davidson put C.C.’s body inside the
garbage can. Davidson left in the 4Runner and returned in about two minutes. He sat around
the house, and then said that he had “to take the trash out.” Defendant fell asleep at around
5:00 a.m. on Monday and woke up around 11:00 a.m. When she awoke, Davidson was not
at the house, and the trash can was still in the kitchen. Defendant, Cobbins, and Thomas left
the house and walked to Vince Wernimont’s house. Thomas and Cobbins later went back
to the Chipman Street residence to get Defendant’s clothes, and Thomas, Cobbins, and
Defendant stayed at Wernimont’s house for several hours before going to Wernimont’s
girlfriend’s house. The following day, Jody Long drove the three to Kentucky.
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Agent Waggoner did not participate in Defendant’s testimony before the federal grand
jury, but he was present the following day when Defendant was interviewed again at the
Knox County District Attorney’s Office. Defendant’s father was present for the interview.
That interview was not recorded, and Agent Waggoner did not take notes. He testified that
Defendant’s statements were consistent with her statements the previous day.
Agent Waggoner testified that Defendant was voluntarily placed into protective
custody in Knoxville on January 26, 2007, after her name was reported by the news media.
On January 28, 2007, Defendant and her mother left protective custody and returned to
Kentucky. Defendant’s father drove to Knoxville to pick up Defendant and her mother at the
ATF Office. While they were at the ATF Office, agents interviewed Defendant again.
Defendant told agents “the same things that she had told us before.” Agent Waggoner
stopped the interview and told Defendant’s mother to urge Defendant to “tell us the truth
about this.” After Defendant’s father arrived, Agent Waggoner resumed the interview, and
Defendant stated that she had touched the cloth bindings that were used to tie up C.C. At that
point, Agent Waggoner began recording the interview and went back over everything that
they had already talked about. The recording of the interview and transcript were admitted
at trial. Agent Waggoner saw Defendant again on January 31, 2007, when he went with two
detectives from the Knoxville Police Department to Lebanon, Kentucky to arrest Defendant
after the presentment was returned by the Knox County Grand Jury. Agent Waggoner
testified that he was present during the detectives’ interview of Defendant prior to her arrest,
and to his knowledge, Defendant was not informed of the presentment until after the
interview concluded.
Detective Todd Childress, of the Knoxville Police Department, participated in the
interview of Defendant on January 18, 2007. Detective Childress testified that Defendant
stated that she was “scared and held hostage” during the commission of the offenses.
Detective Childress also participated in the interview of Defendant on January 31, 2007.
Defendant’s statement was recorded and admitted into evidence along with a transcript.
Defendant stated that on Sunday, January 7, 2007, Davidson, Cobbins, Thomas, and
Defendant left C.C. tied up and alone in the Chipman Street house while they left in the
4Runner.
TBI Agent Jennifer Millsaps analyzed the vagina, anal, and oral swabs taken from
C.C. Agent Millsaps found the presence of spermatozoa in both the vaginal and anal swabs,
and both contained a mixture of DNA of C.C. and Davidson. The oral swab contained
semen, and the DNA was a mixture of C.C. and Cobbins. Agent Millsaps also analyzed two
stains on C.C.’s tank top, and both tested positive for the presence of spermatozoa, and both
contained DNA of Cobbins.
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Agent Millsaps also examined the floral fabric collected during the autopsy of C.C.,
and determined that it had several stains containing spermatozoa. One stain contained DNA
of Defendant and Cobbins. Another stain contained DNA from an unidentifiable female and
Cobbins. A third stain contained spermatozoa and the DNA of Defendant and Cobbins. A
fourth stain also contained spermatozoa and the DNA of C.C., Defendant, and Cobbins.
Agent Millsaps examined C.C.’s jeans, which contained the DNA of Cobbins and Davidson.
She also examined cuttings from an inflatable bed recovered from the residence. The first
contained blood and spermatozoa and the DNA of Davidson and Sutton. Another contained
blood matching Sutton’s DNA. A third cutting contained spermatozoa and DNA of C.C. and
an unidentifiable person. Agent Millsaps also tested a white cloth strip from a gray purse.
One section had a mixture of DNA of Defendant and C.C. Another section had DNA of C.C.
and other unidentifiable persons. Two other sections contained DNA of the C.C., Davidson,
and Sutton.
Dr. Larry Miller, a forensic document examiner, testified that he compared
handwriting by Defendant to handwriting in a journal recovered following Defendant’s
arrest, and he concluded that the handwriting matched. From an entry dated January 8-9,
2007, Defendant wrote:
Think!
Wake up! And look around! What[’]s [r]eally goin[g] on! I don[’]t have
[a] clue or at least I use[d] to be able to say I don[’]t know, but as much as
I’ve seen and observed and learned, I know exactly what[’]s goin[g] on.
Although a lot of this is new to me. Life is a trip, but it[’]s amazing how
things play its own role. Life is interesting [and] full of surprises even very
unexpected things happen that you don[’]t expect.
Nessa!
An entry for January 9, 2007, states:
Crazy!
Last night was one of a kind. We stayed w/a crackhead that is cool as hell.
It snowed a lil bit but it’s already melted. Let’s talk about adventures! I had
one HELL OF AN ADVENTURE since I’ve been in the big T.N. [I]t’s a
crazy world these days! But I love the fun adventures [and] lessons that
I’ve learned. It[’]s going to be a long interesting year!
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Ha! Ha!
Nessa!
The entry continued onto the following page as follows:
The ride home! Ha. Ha. We had a crackhead bringin[g] us back. The whole
way back she was complaining b/c she didn’t have any drugs. She was
drivin[g] kinda crazy, but it was str8 tho.
On the last page, the entry reads:
THE END!
How interesting is your life?
I bet it won’t compare to mine!
Cuz I love my life!
Analysis
Sufficiency of the evidence
Defendant contends that the evidence was insufficient to sustain her convictions.
Specifically, Defendant asserts that the evidence at trial was entirely circumstantial, and
Defendant challenges the sufficiency of the evidence that she facilitated in the commission
of the specific crimes. After all the mergers of convictions, Defendant stands convicted of
one count of facilitation of first degree murder of C.C., one count of facilitation of
aggravated kidnapping of C.C., three counts of facilitation of rape of C.C., and one count of
facilitation of misdemeanor theft.
When a defendant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate court is “whether after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979); see also Tenn. R. App. P. 13(e). The State is entitled to the
strongest legitimate view of the evidence and all reasonable or legitimate inferences which
may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the evidence,
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as well as all factual issues raised by the evidence, are resolved by the trier of fact. State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the
evidence, nor will this court substitute its inferences drawn from the circumstantial evidence
for those inferences drawn by the jury. Id. Because a jury conviction removes the
presumption of innocence with which a defendant is initially cloaked at trial and replaces it
on appeal with one of guilt, a convicted defendant has the burden of demonstrating to this
court that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and ‘[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’”
State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 203 Tenn. 440,
313 S.W.2d 451, 457 (Tenn. 1958)). “The 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)).
“A person is criminally responsible for the facilitation of a felony, if, knowing that
another intends to commit a specific felony, but without the intent required for criminal
responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance
in the commission of the felony.” T.C.A. § 39-11-403(a). Defendant does not challenge the
sufficiency of the evidence to prove that her co-defendants committed first degree murder,
aggravated kidnapping, rape, and misdemeanor theft. Therefore, we will confine our
discussion to the proof regarding Defendant’s facilitation.
Both direct and circumstantial evidence presented at the trial, viewed in the light most
favorable to the State and together with all reasonable inferences drawn therefrom, supports
a conclusion that Defendant knew that one or more of her co-defendants intended to commit
first degree murder, aggravated kidnapping, rape, and misdemeanor theft, and that Defendant
furnished substantial assistance in the commission of the felonies. Such evidence includes:
(1) Defendant admitted that while she was staying at Davidson’s residence, Defendant
saw co-defendants Davidson, Cobbins, and Thomas leave on Saturday night. When
they returned, Davidson brought in a blindfolded white female and took her into the
front bedroom. She soon heard the blindfolded victim saying, “stop, don’t, quit.”
From this the jury could infer Defendant knew an aggravated kidnapping was in
progress and that rape was about to begin.
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(2) Defendant admitted in one statement that she observed Davidson tie up the victim on
the bed in the front bedroom.
(3) The multiple wounds inflicted upon C.C. as depicted in the autopsy photographs
admitted into evidence are proof that the rapes took a considerable period of time and
were vicious and violent, and the jury could reasonably infer that the rapes caused a
substantial amount of noise. From this, the jury could reasonably conclude that
Defendant could not have been unaware of her co-defendants’ criminal intent to
commit aggravated kidnapping and rape.
(4) Defendant stated in one of her interviews with police that she saw Davidson kill the
victim by snapping the victim’s neck. This alleged cause of death is inconsistent with
the cause of death found by the medical examiner during the autopsy. A jury is
entitled to reject some portions and accept other portions of a defendant’s statement.
State v. Gilbert, 612 S.W.2d 188, 190 (Tenn.Crim. App. 1980) (citing Batey v. State,
527 S.W.2d 148 (Tenn. Crim. App. 1975)). Thus, the jury could find that Defendant
observed the method used by co-defendant Davidson to kill the victim. The jury
could find credible the medical examiner’s testimony that the victim was alive when
she was tied in the fetal position inside garbage bags with a plastic garbage bag
around her head and stuffed into a trash can, where she later died from asphyxiation.
This shows Defendant knew, prior to the victim’s death, that Davidson intended to
kill the victim.
(5) Evidence was introduced that a sheet or sheets were torn in order to make the cloth
bindings which were used to tie up the victim. In one of her statements, Defendant
admitted that she had touched these bindings. From this the jury could reasonably
infer that Defendant had tied up or helped to tie up the victim and/or make the
bindings out of the sheet(s).
(6) In her statements to police Defendant admitted that at least two times prior to the
victim’s death, Defendant “checked” on the victim who was tied up in the front
bedroom. From this evidence the jury could reasonably infer that Defendant assisted
the co-defendants by helping to guard the victim during the time period in which the
murder, aggravated kidnapping, and rapes occurred.
(7) Defendant admitted in one of her statements that at some point on Sunday, she,
Davidson, Cobbins, and Thomas left the house to ride around in the victim’s 4Runner,
and they had left the victim “alive in the house alone and tied up.” Even though
Defendant asserted in one statement that she herself was being held as a hostage by
her co-defendants, the jury could find that assertion not credible, and could infer from
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Defendant’s admission about riding around with the co-defendants after they left the
victim “alone and tied up” that she was in full cooperation with the co-defendants in
the commission of the various crimes.
(8) Defendant admitted in one of her statements to police that she saw Davidson “walk”
the victim through the house while the victim was not wearing any clothes below her
waist. As the jury does not have to find Defendant’s timeline of events credible, and
can still find as true parts of Defendant’s statement, the jury could reasonably infer
that Defendant knew Davidson intended to rape the victim.
(9) Defendant admitted that she obtained possession of the victim’s purse, billfold,
perfume, and clothes. The jury could infer that Defendant received these items from
Davidson at a time that Defendant was providing substantial assistance to the
principal perpetrators during the commission of the crimes.
(10) Defendant left Knoxville with two co-defendants shortly after the crimes were
committed and went to Kentucky, where she attempted to establish a false alibi by
telling her friend Stacy Lawson on January 9, 2007, “I came back [to Kentucky] with
you [Lawson]” on January 2, five days prior to the crimes in Knoxville. The jury can
accept as evidence of Defendant’s guilt her flight from the crime scene and the
attempt to establish a false alibi. See Sotka v. State, 503 S.W.2d 212, 221 (Tenn.
Crim. App. 1972) (An accused’s flight does not, alone, establish guilt, “but taken in
connection with other facts may become one of a series of circumstances from which
guilt may be inferred.”); see also State v. Bruce D. Mendenhall, No. M 2010-01381-
CCA-R3-CD, 2013 WL 360525, at *59 (Tenn. Crim. App., Jan. 30, 2013), perm.
app. denied (Tenn., June 11, 2013) (held that evidence of the defendant’s attempts to
obtain a false alibi were probative to establish motive, intent, and absence of mistake
in Rule 404(b) analysis).
(11) The two journal entries written by Defendant on January 8 and 9, 2007 (the two days
following the victim’s death) state in part, “Life is interesting [and] full of surprises
even very unexpected things happen that you don[’]t expect . . . Crazy! . . . Let’s talk
about adventures! I had one HELL OF AN ADVENTURE [sic] since I’ve been in
the big T.N. [sic] [I]t’s a crazy world these days! But I love the fun adventures [and]
lessons that I’ve learned.” From these writings the jury could reasonably infer the
Defendant knowingly furnished substantial assistance to her co-defendants in the
commission of murder, aggravated kidnapping, rapes, and misdemeanor theft. The
jury could infer that Defendant facilitated the commission of the crimes with fervor
and excitement.
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Defendant relies upon this Court’s unpublished opinion in State v. Ruby Breeden, No.
E2004-01512-CCA-R3-CD, 2005 WL 3199280 (Tenn. Crim. App. Nov. 30, 2005) to support
her assertion that she is entitled to relief on the evidentiary sufficiency issue. In Ruby
Breeden, a panel of this court reversed and dismissed the facilitation of first degree murder
conviction of one of the defendants on the basis that the evidence totally failed to establish
that the defendant knew the co-defendant intended to kill the victim. Id. at *5. The court in
Ruby Breeden also relied upon prior law controlling the review of cases based entirely upon
circumstantial evidence. Id. at *4. Since Ruby Breeden was filed, the Tennessee Supreme
Court has clarified that in Tennessee whenever a conviction is based upon circumstantial
evidence, “It is not necessary that the evidence exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt, provided a
reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable
doubt.” U.S. v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (as quoted with approval in Dorantes,
331 S.W.3d at 381. Furthermore, as detailed above, in Defendant’s case there is evidence
that Defendant knew her co-defendants intended to commit the crimes for which she was
convicted of facilitation. Defendant’s reliance on Ruby Breeden is therefore misplaced.
Most of the remainder of Defendant’s sufficiency argument relies upon cases which hold that
mere presence at a crime scene is not sufficient to establish guilt of facilitation of a crime.
See State v. Breeden, at *4-5; State v. Caldwell, No. E2008-00307-CCA-R3-CD, 2009 WL
2191706 (Tenn. Crim. App. Oct. 6, 2009). As we have set forth above, there is sufficient
circumstantial evidence that Defendant was not “merely present.”
After a thorough review of the record and Defendant’s argument, we conclude that
Defendant is not entitled to relief on this issue, and that there is sufficient evidence to support
the jury’s determination that Defendant was guilty beyond a reasonable doubt.
Federal grand jury subpoena
Defendant contends that the trial court erred by denying her motion to dismiss the
presentment because she was subpoenaed to testify before a federal grand jury before the
filing of her presentment. Before her first trial, Defendant moved to dismiss the presentment
under Rule 6(j)(6) of the Tennessee Rules of Criminal Procedure, arguing that her subpoena
to testify before the federal grand jury barred her state court prosecution. The presiding trial
judge denied the motion but granted an interlocutory appeal under Rule 9 of the Tennessee
Rules of Appellate Procedure. This court denied an interlocutory appeal, concluding that
Defendant’s probability of success on appeal was not so great as to justify an immediate
appeal. The Tennessee Supreme Court denied an interlocutory appeal, and the case
proceeded to trial. Defendant renewed her motion to dismiss prior to her second trial, and
the trial court denied the motion, relying on this court’s order denying interlocutory appeal.
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Defendant asserts that this issue should be reviewed under a de novo standard because
questions of law are reviewed de novo. See Fields v. State, 40 S.W.3d 450, 457 (Tenn.
2001). The State asserts that the issue should be reviewed for an abuse of discretion because
that is the standard under which we review a trial court’s decision to dismiss a presentment.
See State v. Merriman, 410 S.W.3d 779, 791 (Tenn. 2013). Under either standard of review,
our conclusion is the same. Because Tennessee Rule of Criminal Procedure 6(j)(6) does not
apply to federal grand jury proceedings, the rule does not provide immunity to Defendant.
Tennessee Rule of Criminal Procedure 6(j)(6) provides that “[n]o witness shall be
indicted for any offense in relation to which the district attorney general has compelled the
witness to testify before the grand jury.” Tennessee Rule of Criminal Procedure 6 applies
only to proceedings in state grand juries within the State of Tennessee. It does not apply to
proceedings in any federal grand jury within the State of Tennessee or elsewhere.
Accordingly, the provisions of the rule can only apply to compelled testimony before a state
grand jury within the State of Tennessee. Defendant was subpoenaed to testify before a
federal grand jury of the United States of America. Accordingly, Defendant is not entitled
to relief on this issue.
Admissibility of Defendant’s unrecorded statements
Defendant contends that the trial court erred by allowing into evidence Agent
Waggoner’s testimony about statements made by Defendant during an unrecorded interview.
The State asserts that Defendant’s statements to Agent Waggoner were admissible as party-
opponent admissions under Tennessee Rule of Evidence 803(1.2). See State v. Lewis, 235
S.W.3d 136, 145 (Tenn. 2007) (defendant’s statement may be admissible as an admission by
a party-opponent). Defendant cites State v. Cartwright, No. W2010-01253-CCA-R3-CD,
2011 WL 2410370 (Tenn. Crim. App., June 10, 2011), perm. app. denied (Tenn., Oct. 18,
2011), and argues against the admissibility of the statement because “there was no evidence
that the defendant adopted the statement or indicated a belief in its truth.” The State
responds that this case is distinguishable from Cartwright because the State did not seek to
admit Agent Waggoner’s notes from the interview as if they were Defendant’s statement, but
rather Agent Waggoner testified about the statements Defendant made while he refreshed his
recollection by reviewing his notes taken during the interview.
We agree with the State’s position that Agent Waggoner’s testimony about statements
Defendant made during the unrecorded interview are admissible as party opponent
admissions under Rule 803(1.2)(A), which provides that “[a] statement offered against a
party that is . . . the party’s own statement in either an individual or a representative capacity”
is “not excluded by the hearsay rule.” Tenn. R. Evid. 803(1.2) (2006). In Cartwright, the
investigating agent paraphrased the statement of the defendant in writing, and the defendant
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initialed each paragraph and signed the written statement. The defendant challenged the
admissibility of the statement at trial, arguing that the statement was not his own statement,
but rather a paraphrased account of his interview by the investigating agent. A panel of this
court concluded that in order to be admissible as an admission by a party-opponent,
Cartwright must have adopted the statement or indicated a belief in its truth under Tenn. R.
Evid. 803(1.2)(B). We held that the statement was properly admitted because the defendant
did, in fact, acknowledge the statement by initialing each paragraph and signing each page.
The defendant also added his expression of remorse at the conclusion of the document in his
own handwriting and signed the document.
Unlike the defendant’s statement in Cartwright, in this case, Agent Waggoner testified
from his memory of Defendant’s interview. It was not necessary for Defendant to adopt the
statement of Agent Waggoner because it was not presented to the jury as Defendant’s own
statement, but rather Agent Waggoner’s memory of statements made by Defendant.
Defendant is not entitled to relief on this issue.
Admissibility of photographs
Defendant contends that the trial court erred by allowing into evidence graphic and
gruesome photographs of the deceased victims. Defendant asserts that the photographs were
prejudicial and caused the jury confusion of the issues. The State responds that Defendant
has waived consideration of the issue by failing to support her argument with appropriate
citations to authority. Under Tennessee Rule of Appellate Procedure 27(a)(7)(A), an
appellant must provide an argument setting forth “the contentions of the appellant with
respect to the issues presented, and the reasons therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities and appropriate
references to the record (which may be quoted verbatim) relied on.” Under Tennessee Court
of Criminal Appeals Rule 10(b), “[i]ssues which are not supported by argument, citations to
authorities, or appropriate references to the record will be treated as waived in this court.”
In fact, even “constitutional objections to the admission of evidence may be waived by the
failure to cite appropriate authority.” State v. Sexton, 368 S.W.3d 371, 411 (Tenn. 2012)
(citing State v. Boling, 840 S.W.2d 944, 949 (Tenn. Crim. App. 1992)).
Defendant argues that the photographs of both victims “were improper, were unfairly
prejudicial, and created confusion of the issues.” Defendant also asserts that the photographs
were “simply not relevant,” apparently because Defendant was charged with facilitation
rather than the underlying offenses and because Defendant had been acquitted of any
offenses against C.N. in the first trial. Defendant contends that “two extremely graphic
photographs of [C.N.]” were not relevant and were unfairly prejudicial and used to inflame
the jury. However, Defendant does not cite any legal authority in support of her argument.
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In any event, the two photographs of C.N. were relevant pertaining to a count of the
presentment that the jury acquitted Defendant of in the second trial. That count charged
Defendant with facilitation of felony murder of C.C. during the perpetration of a kidnapping
of C.N. It can be legitimately argued that the photographs of C.N. supported the allegation
that he had been kidnapped prior to his death.
We agree with the State that Defendant’s brief regarding the issue of C.C.’s
photographs is inadequate. Defendant does not make any identifiable argument about the
admissibility of C.C.’s autopsy photographs. Nevertheless, we conclude that the trial court
did not abuse its discretion by admitting the photographs.
The admissibility of photographs is governed by Tennessee Rules of Evidence 401
and 403. See State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978). Under these rules, the trial
court must determine, first, whether the photograph is relevant. Tenn. R. Evid. 401; Banks,
564 S.W.2d at 949. Next, the trial court must determine whether the probative value of the
photograph is substantially outweighed by the danger of unfair prejudice. Tenn. R. Evid.
403; Banks, 564 S.W.2d at 950-51. The term “unfair prejudice” has been defined as “[a]n
undue tendency to suggest decision on an improper basis, commonly, though not necessarily,
an emotional one.” Id. Photographs offered by the State must be relevant to prove some part
of its case and must not be admitted solely to inflame the jury and prejudice it against the
defendant. Id. Whether to admit the photographs rests within the sound discretion of the
trial court and will not be reversed absent a clear showing of an abuse of that discretion. Id.
at 949; see also State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993); State v.
Allen, 692 S.W.2d 651, 654 (Tenn. Crim. App. 1985).
Seventeen photographs taken of C.C.’s body were admitted at trial. The photographs
showed the brutality of the crime. The relevance was that Defendant was present during the
repeated raping of C.C., and by Defendant’s own account, she only heard C.C. say “stop,
don’t, quit.” C.C.’s lip was torn from oral rape. Her vagina and anus were so severely
injured that blood had collected deep in the tissue and a hematoma had formed. The
multiplicity of the wounds and brutality of the attack were relevant to show that Defendant
could not have been unaware of the offenses occurring. We conclude that the trial court did
not abuse its discretion by allowing the photographs into evidence. Defendant is not entitled
to relief on this issue.
Merger of offenses
Defendant contends that her convictions for facilitation of rape as to C.C. should have
been merged, and that the trial court’s failure to merge the offenses violates double jeopardy.
The State responds that Defendant’s convictions are proper because they were for three
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separate offenses, including the facilitation of anal, oral, and vaginal rape of the victim. We
agree with the State.
Whether multiple convictions violate double jeopardy is a mixed question of law and
fact that this court reviews de novo without any presumption of correctness. State v.
Watkins, 362 S.W.3d 530, 543 (Tenn. 2012) (citing State v. Thompson, 285 S.W.3d 840, 846
(Tenn. 2009)).
During the victim’s autopsy, swabs were taken from the victim’s anus, mouth, and
vagina. Semen and DNA matching Cobbins was found in C.C.’s oral swab; the anal swab
tested positive for spermatozoa and it contained DNA matching Davidson; and the vaginal
swab tested positive for semen and spermatozoa and contained DNA matching Davidson.
In State v. Phillips, 924 S.W.2d 662, (Tenn. 1996), the Tennessee Supreme Court
considered whether the defendant’s three convictions for aggravated rape predicated upon
three separate penetrations violated the Double Jeopardy Clause. Relying upon North
Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v.
Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989), the court concluded that
they did not. Id. at 664-65. As the court explained:
Preliminarily, we note that “although separate acts of intercourse may be so
related as to constitute one criminal offense, generally rape is not a
continuous offense, but each act of intercourse constitutes a distinct and
separate offense.” Moreover, each of the above-described acts is separately
defined in Tenn. Code Ann. § 39-13-501(7) as a discrete type of sexual
penetration subsumed by Tenn. Code Ann. § 39-13-502, the aggravated
rape statute. Each act, in our opinion, is capable of producing its own
attendant fear, humiliation, pain, and damage to the victim. Each type of
penetration requires a purposeful act on the part of the perpetrator.
Id. at 664 (footnotes omitted).
The evidence at trial showed that the victim was penetrated anally, orally, and
vaginally by two of Defendant’s co-defendants, Davidson and Cobbins. Therefore, the
evidence clearly supports three separate offenses of facilitation of rape. Defendant is not
entitled to relief on this issue.
Sentencing
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Finally, Defendant challenges the trial court’s finding that Defendant was a dangerous
offender under T.C.A. § 40-35-115(b)(4) and argues that her sentence is excessive. In State
v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law and the impact
on appellate review of sentencing decisions. Our supreme court announced that “sentences
imposed by the trial court within the appropriate statutory range are to be reviewed under an
abuse of discretion standard with a ‘presumption of reasonableness.’” State v. Bise, 380
S.W.3d 682 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s
logic and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555
(Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse
of discretion, the record must be void of any substantial evidence that would support the trial
court’s decision. Id. at 554-55; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v.
Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court should uphold
the sentence “so long as it is within the appropriate range and the record demonstrates that
the sentence is otherwise in compliance with the purposes and principles listed by statute.”
Bise, 380 S.W.3d at 709-10. So long as the trial court sentences within the appropriate range
and properly applies the purposes and principles of the Sentencing Act, its decision will be
granted a presumption of reasonableness. Id. at 707.
Our supreme court extended the Bise standard to appellate review of the manner of
service of a sentence and consecutive sentencing. The court explicitly held that “the abuse
of discretion standard, accompanied by a presumption of reasonableness, applies to
within-range sentences that reflect a decision based upon the purposes and principles of
sentencing, including the questions related to probation or any other alternative sentence.”
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). In State v. Pollard, the Court held,
“the appropriate standard of appellate review for consecutive sentencing is abuse of
discretion accompanied by a presumption of reasonableness.” State v. Pollard, 432 S.W.3d
851, 860 (Tenn. 2013). We also recognize that the defendant bears “the burden of showing
that the sentence is improper.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
In determining the proper sentence, the trial court must consider: (1) the evidence, if
any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 40-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant's own behalf about sentencing. See T.C.A.
§ 40-35-210 (2010); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial
court must also consider the potential or lack of potential for rehabilitation or treatment of
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the defendant in determining the sentence alternative or length of a term to be imposed.
T.C.A. § 40-35-103 (2014).
Consecutive sentencing is a matter addressed to the sound discretion of the trial court.
State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App. 1984). A trial court may order
multiple sentences to run consecutively if it finds, by a preponderance of the evidence, that
at least one of the seven statutory factors exists. T.C.A. § 40-35-115(b)(1)-(7) (2014). In
addition to these criteria, consecutive sentencing is subject to the general sentencing principle
that the length of a sentence should be “justly deserved in relation to the seriousness of the
offense” and “no greater than that deserved for the offense committed.” T.C.A. § 40-35-
102(1), -103(2) (2014); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
At the sentencing hearing, the trial court heard victim impact statements from C.C.’s
mother and father. A presentence report was also admitted into evidence. At the conclusion
of the sentencing hearing, the court found Defendant’s age and lack of a prior criminal
history to be mitigating factors. Regarding enhancement factors, the court stated as follows:
And the Court does find that [Defendant] allowed – or treated –
allowed or treated the victim in this case with exceptional cruelty. It may
not have been that she did any one thing to the body or this victim, but the
psychological cruelty that was inflicted on this – on this unfortunate victim
was amiss and was exceptional. And there’s no way that any of the
defendants that were involved in this case can be separated from that
psychological fear and cruelty that was inflicted upon this lady. It is so
horrific, that this one factor, in and of itself, outweighs any degree – any
mitigating factors that are presented on behalf of the defendant.
The court found that the exceptional cruelty of the offenses in this case
“outweigh[ed] all of the mitigating factors presented in this case.” The court
sentenced Defendant to 25 years for her facilitation of first degree murder
conviction; six years for her facilitation of aggravated kidnapping conviction, to be
served consecutive to her 25-year sentence; four years for each of her three
facilitation of rape convictions, to be served concurrently with each other but
consecutively to her remaining sentences; and six months for her facilitation of theft
conviction, to be served concurrently with the remaining sentences. Defendant’s
total effective sentence is 35 years.
The trial court found that consecutive sentencing was necessary because Defendant
is a dangerous offender, whose behavior indicates little regard for human life and no
hesitation about committing a crime in which the risk to human life is high. See T.C.A. § 40-
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35-115(4) (2014). Our Supreme Court has noted that the “dangerous offender” category is
the hardest and most subjective to apply. State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999).
Consequently, our Supreme Court in State v. Wilkerson held that “particular facts” must
show the following in order to base consecutive sentencing on subsection 115(b)(4): (1) that
an extended sentence is necessary to protect the public against further criminal conduct by
the defendant; and (2) that the consecutive sentences reasonably relate to the severity of the
offenses committed. 905 S.W.2d 933, 938-39 (Tenn. 1995); see State v. Robinson, 146
S.W.3d 469, 524 (Tenn. 2004).
In discussing the applicability of the “dangerous offender” category to Defendant, the
trial court stated:
I don’t believe that there’s any more subjective finding that a Court
can make in determining whether or not a person is a dangerous offender.
I don’t think it has to be a past history of dangerous – of criminal activity
to characterize one as a dangerous offender. I think you can be as
dangerous an offender being a first offender based upon the fact[s] and
circumstances of a case.
Each and every one of the defendants that were engaged in this
criminal episode, no matter what manner of degree for their participation in
this crime, is a dangerous offender.
To have committed this crime under the circumstances that they – it
was committed, even being there, not doing anything in the world to stop
it, convinces a dangerous abil [sic] – convinces this Court the
dangerousness of that person.
You cannot convince this Court that there’s not something that some
– that [Defendant] couldn’t have done to have brought this to – escape,
shout, no, do something, to have stopped this – to have at least shown to the
Court that she was there while this crime was being committed and
acquiesced in it.
The crime in itself, and anyone that’s involved in it, to this Court,
convinces a dangerous – a dangerous capacity which consecutive sentences
are necessary to protect the public and restrain and protect society against
future criminal behavior.
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We conclude that the evidence supports the trial court’s imposition of consecutive
sentences. The facts at trial showed that Defendant was in the house for nearly two days
where C.C. was confined and brutally raped before she was tied up, wrapped in five plastic
trash bags, and stuffed into a garbage can, where she died from asphyxiation. In
contemporaneously written journal entries, Defendant described “one HELL OF AN
ADVENTURE . . . in the big T.N.” and wrote that she “love[d] [her] life!” This evidence
supports the trial court’s finding that Defendant is a dangerous offender. Furthermore, the
nature of this crime supports the trial court’s finding that consecutive sentencing is necessary
to protect the public and that the sentence is reasonably related to the seriousness of the
offenses committed. Defendant is not entitled to relief on this issue.
CONCLUSION
For the reasons stated herein, we affirm the judgments of the trial court.
_______________________________________
THOMAS T. WOODALL, PRESIDING JUDGE
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