State of Tennessee v. Dorris Lee Markum ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 24, 2006
STATE OF TENNESSEE v. DORRIS LEE MARKUM
Appeal from the Circuit Court for Warren County
No. F-9361 Larry B. Stanley, Judge
No. M2004-02884-CCA-R3-CD - Filed February 17, 2006
The appellant, Dorris Lee Markum, was indicted on two counts of aggravated burglary, two counts
of arson and two counts of theft of property under five hundred dollars. After a jury trial, the
appellant was convicted of all charges. As a result, he was sentenced as a Range II multiple offender
to an effective sentence of twenty years. After the denial of a motion for new trial, the appellant
appeals, arguing that the evidence was insufficient to support his arson convictions and that the trial
court improperly instructed the jury on arson. For the following reasons, we affirm the judgment of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed
JERRY L. SMITH , J., delivered the opinion of the court, in which THOMAS T. WOODALL, and ROBERT
W. WEDEMEYER , JJ., joined.
Michelle M. Benjamin, Winchester, Tennessee, for the appellant, Dorris Lee Markum
Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; and
Dale Potter, District Attorney General, for the appellee, State of Tennessee.
OPINION
On December 21, 2002, at around 8:30 p.m., Charlotte Helton called the authorities in
Warren County to report a vehicle on fire at her home located at 649 Loss Crouch Road in
McMinnville, Tennessee. Ms. Helton told the authorities that she saw a man and woman trying to
move a van that was lodged on a retaining wall outside her home. When the two were unsuccessful
in removing the van from the wall, the man set the van on fire. The van was engulfed in flames by
the time the fire department arrived. The police later determined that the van was registered to the
appellant’s father. The tags on the car were issued to Beth Ivey, the woman trying to move the van.
Billy Joe Crouch, a volunteer fire marshal, responded to the call at Ms. Helton’s residence.
While there, he heard a smoke detector go off at a neighboring residence located at 721 Loss Crouch
Road. The home belonged to Caressa Nokes, who came home from church to find her house on fire.
When Ms. Nokes arrived home, the residence was filled with heavy smoke. After the smoke cleared,
Ms. Nokes discovered that the home was damaged and had been burglarized. The front window and
screen were broken and the front door was open. Both of Ms. Nokes’s children’s rooms were
damaged in the fire and the drawers were pulled out of their dressers. A television set and VCR
melted during the fire. Additionally, a mattress was completely destroyed in one of the bedrooms.
In the kitchen, all four eyes on the stove were red and glowing, and there was a large pile of flaming
debris on top of the stove. The perpetrator had tampered with the presents that were under the
Christmas tree. Further, many items were missing from the Nokes’s residence, including
prescription medication, costume jewelry, knives, and a cigarette lighter engraved with the name
“Caressa.”
Elizabeth Jaco, a resident of 491 Loss Crouch Road, heard the commotion at Ms. Helton’s
residence and went to investigate. When she returned home about five minutes later, she found that
someone had broken into her home and started a fire. The eyes on the stove were all turned on and
oil from a kerosene lamp had been poured over the eyes and inside the oven. Ms. Jaco’s home
suffered smoke damage. The front window and a storm window were broken. Additionally, Ms.
Jaco’s home was burglarized, and her purse was stolen.
Officer Chad Martin of the Warren County Sheriff’s Department was called to Ms. Helton’s
residence in response to the vehicle fire. When he arrived, he discovered a female passenger from
the van, Beth Ivey, to be passed out and unresponsive, lying in the middle of the road. After Ms.
Ivey regained consciousness, she refused treatment from an ambulance that was called to the scene.
Ms. Ivey was placed in the back of a patrol car and cited for public drunkenness.
Officer Martin received a call about the fire at Ms. Jaco’s residence while investigating the
vehicle fire. As Martin and another officer got ready to investigate the fire at the Jaco residence,
someone yelled out “there he goes” and indicated that the suspect was running across the street into
a nearby wooded area. Officers Seth Webb and Cory Knowles saw Officer Martin begin pursuit of
the suspect across a field and joined in the chase. Following the suspect’s tracks, Officer Knowles
located a purse across the street from the Jaco residence near a tree. Ms. Jaco later identified the
purse as hers. Officer Webb found Ms. Nokes’s camera within a few feet of Ms. Jaco’s purse.
Officer Martin received a third call regarding another fire alarm on Loss Crouch Road. By
that time, he had lost track of the suspect. A few minutes later, as Officer Martin was sitting next
to a barn, he saw the suspect run across a field. Officer Martin called for backup and followed the
suspect on foot. Officer Martin apprehended the appellant a few minutes later when the appellant
tripped over a fence. The appellant identified himself as “Lee Markum.” Officer Martin placed the
appellant under arrest and searched him for weapons. Officer Martin recovered several pill bottles,
knives, watches, a ring, a lighter and a camera case from the appellant’s person. The items were later
identified as belonging to the Nokes.
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In March of 2003, the appellant was indicted by the Warren County Grand Jury with two
counts of aggravated burglary, two counts of arson, two counts of theft under $500 and vandalism.
After a jury trial, the appellant was convicted of two counts of aggravated burglary, two counts of
arson and two counts of theft. The trial court sentenced the appellant to ten years for each count of
aggravated burglary, ten years for each count of arson and eleven months and twenty-nine days for
each count of theft. The trial court ordered that the ten-year sentence for aggravated burglary in
count one run concurrently to the ten-year sentence for arson in count two. Likewise, the trial court
ordered the ten-year sentence for aggravated burglary in count four to run concurrently to the ten-
year sentence for arson in count five. The trial court ordered the eleven month, twenty-nine day
sentences for theft to run concurrently to the aggravated burglary and arson sentences. The trial court
ordered the two effective ten-year sentences to run consecutively to each other, for a total effective
sentence of twenty years.
The appellant filed a motion for new trial, arguing that the evidence was insufficient to
support the convictions, that the police did not examine his clothes to ascertain “the presence of any
accelerates [sic] or smoke residue corroborating whether he was the perpetrator,” and that the trial
court erred in introducing photographs of the physical evidence rather than the actual items. The trial
court denied the motion for new trial, and the appellant filed a timely notice of appeal. On appeal,
the appellant presents the following issues: (1) whether the evidence was sufficient to support his
arson convictions; and (2) whether the trial court failed to properly instruct the jury on arson.
Analysis
First, the appellant complains that the evidence was insufficient to establish that he
committed arson. Specifically, the appellant contends that “circumstantial evidence linking him to
the arson was insufficient to exclude every other reasonable theory or hypothesis except that of his
guilt of the crimes.” The State disagrees.
When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer 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); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
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App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Questions concerning the
credibility of the witnesses and the weight and value to be given to evidence, as well as all factual
issues raised by such evidence, are resolved by the trier of fact and not the appellate courts. State
v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). Further, a conviction may be based entirely on
circumstantial evidence when the facts are “so clearly interwoven and connected that the finger of
guilt is pointed unerringly at the defendant and the defendant alone.” State v. Smith, 868 S.W.2d
561, 569 (Tenn. 1993) (quoting State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985)). If the trier of
fact can determine from the proof that all other reasonable theories except that of guilt are excluded,
the evidence is sufficient.
Arson is committed by one who knowingly damages any structure by means of a fire without
the consent of all persons who have a possessory, proprietary or security interest therein. Tenn. Code
Ann. § 39-14-301(a)(1). Viewing the evidence in a light most favorable to the State, the evidence
was more than sufficient to support the arson convictions. Immediately prior to the vehicle fire, the
appellant was seen exiting his van beside Ms. Helton’s home. The passenger in the van, Beth Ivey,
was found passed out and unresponsive by the authorities. Immediately after that, two houses within
close proximity were set on fire and burglarized in the same manner, the front windows were broken
out, the houses were ransacked, the eyes of the stoves were turned on and debris was set on fire on
top of the stoves. The appellant was seen leaving the crime scene shortly after the fires and was
taken into custody while in possession of items stolen from the two houses that were burglarized.
The evidence, as presented, points the finger of guilt unerringly at the appellant. The jury was amply
justified in concluding that the appellant was guilty of two counts of arson. This issue is without
merit.
Jury Instructions on Arson
Next, the appellant contends that the trial court erred in instructing the jury on arson.
Specifically, the appellant argues that the trial court should have instructed the jury on the lesser-
included offense of “setting fire to personal property,” as defined in Tennessee Code Annotated
section 39-14-303.
This Court has previously determined that setting fire to personal property or land is not a
lesser-included offense of arson. See State v. Gene Shelton Rucker, Jr., No. E2002-02101-CCA-R3-
CD, 2004 WL 2827004, at *8-9 (Tenn. Crim. App., at Knoxville, Dec. 9, 2004), perm. app denied
(Tenn. Mar. 21, 2005). This issue is without merit.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
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JERRY L. SMITH, JUDGE
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