State of Tennessee v. Reginald Fowler ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 26, 2010 Session
STATE OF TENNESSEE v. REGINALD FOWLER
Appeal from the Criminal Court for Knox County
No. 88531 Richard Baumgartner, Judge
No. E2009-00293-CCA-R3-CD - Filed September 29, 2010
The Defendant, Reginald Fowler, was found guilty of aggravated arson, a Class A felony,
following a bench trial in the Knox County Criminal Court. On appeal, he argues (1) that the
evidence is insufficient to support his conviction, (2) that the trial court erred in failing to
enforce the Rule of Sequestration in violation of Rule of Evidence 615, and (3) that the trial
court erred in permitting the State to call a rebuttal witness. We affirm the judgment of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and D. K ELLY T HOMAS, J R., JJ., joined.
Mark E. Stephens, District Public Defender, and Robert C. Edwards, Assistant Public
Defender, for the appellant, Reginald Fowler.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Ta Kisha Fitzgerald,
Assistant Attorney General, for the appellee, State of Tennessee.
OPINION
The facts relate to a fire at the Hamilton Inn in Knoxville. Doris Delong testified that
she and her husband, Randy Delong, worked at the Hamilton Inn extended stay hotel in
Knoxville. She said that the Defendant checked into room 136 on November 20, 2007. The
Defendant told her he had just moved from Houston, Texas, to work for TVA. He provided
a Texas driver’s license, a Houston address, and a Houston telephone number. The rate was
$149 per week for single occupancy, and Ms. Delong gave the Defendant one key to the room.
If the Defendant had more than one person staying in the room, she would have given him two
keys and charged a higher rate. The Defendant was driving a 1994 Buick.
Ms. Delong testified that the Defendant came to the office on November 21 and
accused her of giving his girlfriend a key to his room. She informed the Defendant that she
could “read” his lock and determine if anyone had accessed his room. She instructed the
maintenance employee, Jon Wensell, to accompany the Defendant to his room. Ms. Delong
said the Defendant became frustrated but followed Mr. Wensell out of the office. She said
that approximately thirty minutes later, the fire alarms went off. The alert horn sounded in
each room, and lights flashed in the rooms equipped for persons with disabilities. Strobe
lights also flashed in the corridors and public areas of the hotel. She and Mr. Delong searched
the building because the alarm system did not indicate which room’s fire alarm had been
triggered. She saw water sprinklers hitting the window of room 136, and she opened the door
about three inches. Ms. Delong saw a lot of smoke and the glow of flames coming from the
bathroom area. She closed the door, left the sprinkler system on, and called the police. While
she was on the telephone with the police, Mr. Wensell and a hotel guest were able to open the
room’s door about one foot by shoving the door against a dresser that was blocking it. Ms.
Delong left to calm the crowd that had gathered. She said that the hotel had 114 rooms, all
occupied, that it was early evening on the day before Thanksgiving, and that most of the
children were “home” from school. Ms. Delong said that most rooms housed two adults and
children.
Ms. Delong testified that after the fire department cleared the room, she surveyed the
damage and found four places where a fire had been started: rolls of toilet paper were burned
under the bathroom sink, a burned rolled-up towel was on the dresser by the door, a pile of
towels and toilet paper were burned at the bottom of the bathroom door, and a pile of towels
had been burned at the foot of the bed. The dresser had been pushed against the door to the
outside. The fire extinguisher was missing although every room was equipped with one.
When Ms. Delong began cleaning the room, she found the smoke detector wrapped in a hat
and a bedspread on the floor. She recognized the hat as the one the Defendant was wearing
when he was in the office. The bathroom door, the door frame, part of the tile, and part of the
carpet needed to be replaced, and it took a week to clean the room. She did not see the
Defendant again at the hotel. The hotel had security cameras installed around the building.
Ms. Delong viewed the videotapes after the room was cleaned and saw the Defendant leave
the back of the building where a small curve led to an alley and a dialysis center. When she
first looked into the room, the towel bar on the dresser and the objects on the bathroom floor
were on fire. She said that the bathroom exhaust fan was designed to close at a certain
temperature to prevent a fire from spreading and that it was damaged. The window blinds
next to the door had melted. She said the fire extinguisher was found in the laundry room.
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The State played a video-recording in which the Defendant entered the hotel office
wearing the baseball cap that was found wrapped around the smoke detector. He left with Mr.
Wensell and walked to his room. About twenty minutes later, the Defendant left his room and
drove his car from the parking lot.
On cross-examination, Ms. Delong testified that she called police dispatch because it
was faster than calling 9-1-1. The fire department arrived quickly. She agreed that code
regulations required each room to have a small kitchen fire extinguisher within one foot of
the stove. She found the fire extinguisher for the Defendant’s room in the laundry room,
located next door to the Defendant’s room. She agreed that a large fire extinguisher was on
the wall outside the Defendant’s room and that it had not been moved. She also agreed that
the smoke detector in the Defendant’s room was hardwired into the electrical system, that it
had a battery backup, and that the battery was removed.
Ms. Delong testified that the Defendant was upset when he came to the office but that
he was not waving his arms or yelling. She explained that a “key reader” was a small device
that can detect when a lock was last opened and by which key card. She confirmed that she
saw a glow from the bathroom area, but she could not be certain whether she saw fire
anywhere else in the room because it was so smoky. The tub was covered in soot, but she did
not see any water in it. The fire sprinkler was located in the bedroom but sprayed far enough
to reach the bathroom walls.
Randy Delong testified that he was the property manager of the Hamilton Inn. He said
that he was in the office when the fire alarm system was triggered. The system indicated that
the sprinkler system was engaged somewhere in the building. He began searching and saw
water hitting the windows in room 136. He said that Ms. Delong opened the door a few
inches to see if anyone was inside but that there was too much smoke and that she quickly
closed the door. Mr. Wensell arrived and tried to open the door but found it blocked. Mr.
Delong told Mr. Wensell that he was going to turn off the sprinkler system and that Wensell
should find whoever was in the room. Mr. Wensell did not find anyone, and Mr. Delong
turned the sprinkler system on again. The fire department arrived and discovered that
“separate little fires” were set throughout the room. Mr. Delong said he saw the different
places where fires had been set. One of the globe bathroom fixtures was on the dresser,
securing a towel rod that had a towel wrapped around one end. He said the globe held the rod
in place in order that it would not fall off when the dresser was lifted to block the door. Other
disgruntled tenants had moved the dressers in front of the doors on their way out of the rooms.
He saw a pile of what looked like bedsheets on the floor. The fire extinguishers were marked
with their respective room numbers, and he found the fire extinguisher for room 136 in the
laundry room. Mr. Delong saw the smoke detector wrapped inside some linens and the hat
that he saw the Defendant wearing earlier that day. He found singed toilet paper inside the
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bathroom cabinet. He noted that on the videotape, the Defendant was seen leaving his room,
walking to his car, and driving into the back alley. He said that a few minutes later, the strobe
lights from the fire alarm were seen flashing.
On cross-examination, Mr. Delong testified that Mr. Wensell and a guest entered the
room, looking for the occupant. He said they went as far as the back wall, but not into the
bathroom, and returned. He stated that Mr. Wensell said, “The room’s still on fire. Nobody’s
in there.” From photographs of the crime scene, Mr. Delong identified smudge marks and
smoke damage on the inside and outside of the bathroom cabinet. He said the cabinet doors
were closed when he entered the room after the fire. He said that many people drove over the
small curb at the back of hotel to gain access to the alley. He said the cost of repairs to the
room was $1,239.50.
Jon Wensell testified that he worked at the Hamilton Inn on November 21, 2007. He
was in the hotel office the day the Defendant checked in and on the next day, when the
Defendant asked if the staff gave anyone a key to the Defendant’s room. He agreed to read
the Defendant’s lock and followed the Defendant to the room. Once they reached the room,
the Defendant said that there was no point in reading the lock and asked him not to let anyone
else into the room. The room was smoky, and the Defendant remarked that he had been
smoking.
Mr. Wensell testified that when the fire alarm was triggered, he received a page
informing him that the location of the fire was room 136. He and one of the tenants were able
to enter the room by pushing the door until the dresser moved. He was trying to determine
if the Defendant was still in the room. Mr. Wensell could not see much because it was smoky
and the sprinklers were running. After the fire was out and the smoke cleared, he saw torches
on the dresser and on the bathroom sink. The unburned torch on the bathroom sink was made
from a towel wrapped around a socket wrench. The sheets and comforter were on the floor,
and they had been set on fire. Rags and a roll of toilet paper had been set on fire under the
bathroom sink. He did not move the clothes or the bedding in the room, but he may have
stepped on them when he first entered. Mr. Wensell knocked the television off the dresser
when he first entered the room. After the fire department finished, he began removing the
water from the room. He found some of the Defendant’s clothing in the chair but none in the
dresser. He said the telephone located in the room was capable of having 9-1-1 dialed. He
said there was a fire alarm pull station and a fire extinguisher located next the Defendant’s
room.
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Mr. Wensell testified that later that evening, he stood on the second floor balcony on
the opposite side of the building and saw the Defendant drive by and pull into the Pilot gas
station across the street. He ran toward the Defendant’s car, but the Defendant was leaving
the parking lot by the time he arrived at the station. When an off-duty sheriff’s deputy pulled
into the parking lot, Mr. Wensell informed him what had happened, and the deputy stopped
the Defendant.
On cross-examination, Mr. Wensell testified that the Defendant seemed nervous when
he came into the office on November 21 but that the Defendant did not yell or argue. He did
not have an opportunity to read the lock before the Defendant told him not to worry about it.
He was the first person to enter room 136 after the fire alarm went off, and the dresser was
blocking the door. He said that it was not too hard for him and a tenant to push the dresser
out of the way and that it only took a few seconds. Mr. Wensell could not tell if anything was
still burning inside the room because of the smoke, but he saw a glow by the bathroom door.
He did not find the burned objects under the bathroom sink until after the fire department left.
He said that most of the damage was to the bathroom door and its frame. When cleaning up
the room, he found drug paraphernalia, some Brillo torn into small pieces, and a crack pipe.
He could not remember whether it was he or Mr. Delong who found the fire extinguisher in
the laundry room.
On redirect examination, Mr. Wensell testified that he found the torn Brillo on the
kitchen counter and under the cabinet. He found the crack pipe on the bar the next day. On
re-cross examination, Mr. Wensell testified that he found the Brillo after the fire department
left.
Investigator Travis Kincaid testified that he was employed with the City of Knoxville
Fire and Explosion Investigation Unit. He was a former U.S. Marshal, a certified fire and
explosive investigator firefighter, and a paramedic. After voir dire by the Defendant,
Investigator Kincaid was accepted as an expert in fires and their origins. Investigator Kincaid
said he was working the evening shift on November 21, 2007, with Captain Jeff Stooksbury.
After arriving at the scene, he spoke with the incident commander and an assistant chief and
received a brief report. He began his investigation outside and worked in the path of least
burned to most burned. He saw protected areas in the carpet which indicated that the dresser
was moved after the fire. The television was knocked off the dresser. The stove would have
been a common source of accidental fire, but it was “totally clean” and the knobs were in the
off position. The fire extinguisher was missing. Investigator Kinkaid said that the point of
origin for the fire was at the bathroom threshold. There was heavy smoke damage. He also
found charring, which occurred when heated wood released vapor, causing fissures. He said
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that a photograph showed a “trailer,” which was a trail of combustible material or ignitable
liquid used to spread a fire faster and farther than it normally would have spread. The sheets,
the Defendant’s clothes, and a bag made the “trailer” which extended under the bed. He said
that Captain Stooksbury found the smoke detector under a blue hat. He said that the missing
fire extinguisher and the disabled smoke detector “raised a lot of red flags.” The patterns of
smoke staining and the smoke detector mounting tabs remaining in place indicated that the
smoke detector was removed before the fire started. The bathroom fan was melted. There
was no evidence that a fire extinguisher had been used or that anyone attempted to extinguish
the fire. At that point in his investigation, he believed that the fires were not accidental. He
explained that torches were used to set fire to objects that were difficult to light with open
flames.
Investigator Kincaid testified that he found no clothes or belongings stored in the room.
He retrieved the hotel records and determined that the Defendant was the person who rented
the room. He watched the videotapes of the Defendant recorded by the hotel’s security
cameras. He issued a “be on the lookout for,” or BOLO, for the Defendant. At about 10:30
p.m., he received a call that an off-duty sheriff’s deputy stopped a person matching the
Defendant’s description. He went to the scene of the stop and confirmed that the suspect was
the Defendant. When the deputy searched the Defendant’s car, Investigator Kincaid saw “all
kinds of clothes just thrown” into the trunk. He found it odd that the Defendant checked into
an extended stay hotel and intended to go to and from work but left his clothes strewn in the
trunk. He read the Defendant his Miranda rights after the Defendant was transported to the
City-County Building, and the Defendant stated that they were ruining his Thanksgiving. He
asked the Defendant what happened, and the Defendant replied again that they were ruining
his Thanksgiving by “trying to pin this” on him. He said that the Defendant stated he had
been cooking some noodles.
Investigator Kincaid testified that the fire began near the bathroom door and not at the
stove. He said that a bed pillow was not the source of the fire because it was burned on top
and not underneath. He said that fire travels up and out, not down, and that the protected area
between two burns on the bathroom threshold indicated that two or more fires were set. He
said that using his “human senses,” he found no evidence of an accelerant. He did not take
samples and did not use a dog trained to detect for accelerant. Investigator Kincaid said that
based upon the use of the “scientific method,” he recognized the problem, defined the
problem, collected data, analyzed the data, formed a hypothesis, and formulated a working
theory. He said that he was able to rule out all accidental causes of the fire, including the
electrical system. He did not find liquor bottles, lighters, crack pipes, or other evidence that
would support the theory of an accidental fire. He observed the Defendant and did not believe
him to be under the influence of an intoxicant. He said that during his career, he had arrested
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people for intoxication, and that the Defendant did not have an unsteady gait, bloodshot eyes,
and did not slur his words. The Defendant was not tested for intoxication.
On cross-examination, Investigator Kincaid testified that he decided this was probably
a criminal investigation when he realized that the fire extinguisher had been removed from
the room, which he said occurred thirty to forty-five minutes after he arrived at the scene. He
agreed that the 9-1-1 dispatch “run report” indicated that he arrived at Hamilton Inn at 5:57
p.m. and departed one hour and forty-three minutes later. He took photographs of the scene
but did not save any evidence. He did not look in the cabinet under the bathroom sink. He
said the position of the television on the floor showed him where the dresser was positioned
when it had been blocking the door. He said the trailer indicated to him an intent to burn the
bed. He agreed that the plastic shower curtain would have been a good source of fuel. He
could not say whether it would have been more effective to have piled objects on the bed and
set them on fire. He identified an object in a photograph as clothing or a gym bag. He
described one of the torches as a towel bar with a pillow melted around it. He said that the
cabinet under the sink was not a point of origin for the fire.
Investigator Kincaid testified that he did not know that Mr. Wensell found drug
paraphernalia in the room. As part of his investigation, he examined the room for evidence
of misused smoking material and found none. In forming his opinion, he relied on the
witnesses’ statements, the photographs from the scene, and his onsite examination. He agreed
that the “scientific method” of fire investigation was taught in the National Fire Protection
Association’s (NFPA) manual. He said that after he conducted a data analysis, he and the
other investigator formed several hypotheses for the fire: electrical fire, smoking fire,
incendiary fire, appliance malfunction, and someone breaking into the room and setting it on
fire. He agreed that at that point, he had proceeded through the NFPA scientific method as
far as the “test the hypothesis” phase. He said that he approached the fire without
presumption and that he tested the hypotheses using “cognitive theory.” He acknowledged
that using human senses to test for the presence of an accelerant meant that he used his sense
of smell. He agreed that it was possible that pure grain alcohol did not have a smell. He
agreed that the NFPA manual stated that a fire investigator should not destroy or discard
evidence. He said that he did not destroy the evidence but that he preserved it through
photographs. He did not save any of the burned material or the torches, and he would not
agree that he should have done so because he did not believe the fire was caused by an
accelerant. He would not agree that the two burned areas by the bathroom were a single fire
separated by the clothing or the gym bag. He said that the torch was not a point of origin but
that it was used to move the fire from one place to another.
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Investigator Kincaid testified that he filed a second report in response to the
Defendant’s motion requesting explanation of the scientific method. In the second report, he
wrote that the room contained three separate ignition points, including a point “under a
bathroom sink inside the cabinet.” He acknowledged that he previously agreed that the
bathroom cabinet was not a point of origin, but he said that the materials inside the cabinet
could have been a point of origin. He agreed that a photograph from the scene showed that
the materials were not on fire when they were placed in the bathroom cabinet. He said that
the small fire extinguisher from the room was “hidden” because it was not in the Defendant’s
room. He would not agree that the fact that the large fire extinguisher remained in its location
outside the Defendant’s room meant that the Defendant had not hidden the small fire
extinguisher. He said that it was more likely that the large fire extinguisher was too difficult
to move. He agreed that the primary purpose of the smoke detector was to alert the room’s
occupant of a fire and that the smoke detector did not trigger the sprinkler system, the hotel-
wide alarm, or notify the fire department. He said that firefighters could disable the sprinkler
head by breaking the bulb and placing a wedge in it, but he did not know how to disable the
entire sprinkler system. He did not check the bottom of the Defendant’s shoes.
Sheryle Ferguson Gusby testified that she had known the Defendant for more than
thirty years and that he stayed at her house from April to October 2007. She said she ordered
him out of her house at the end of October 2007. She called the Defendant at 4:30 or 4:45 on
the Wednesday morning before Thanksgiving to wake him for work. The Defendant called
her at 8:00 that evening and said that he had been drinking “a pint” and smoking a cigarette
with an ashtray propped on the pillow, fell asleep, and started a fire in the hotel room. She
said that the Defendant stated it was a large fire. She asked him if he extinguished the fire,
but she could not remember his response. She asked him if he had informed someone at the
hotel about the fire, and he replied that he had not. She told the Defendant, “You have to go
make that right. There’s kids there.”
Ms. Gusby identified a letter that the Defendant wrote to the NAACP and left at her
house. The letter stated in part:
On November the 21st of [2007], I accidentally fell asleep
with a cigarette in my hand where my pillow caught on fire and
I awakened to a small blaze, but a smoke filled room. I jumped
up, [grabbed] the pillow off the bed, along with the covers, and
tried to get them to the bathroom, because I had water in the tub,
as I was going to take a bath, I just fell asleep before I got there.
Tired from working on my car. Anyway, I dropped the pillow in
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the door way, where I then had to stomp the fire out. I left
because the room was [smoky], and I was going to clean it upon
my return. Anyway, the motel called a fire investigator before I
returned, who made the absurd conclusion that I started the fire
purposely, with an open flame, match or whatever, and that’s
how I received this charge. At my preliminary hearing, the motel
testified that the sprinklers had come on, and that’s how the fire
went out, except wasn’t nothing damaged but a little smoke on
the bathroom door. If sprinklers put the fire out, the carpet,
mattresses, TV, all would be damaged.
My case is in the grand jury, and they are trying to charge
me with this crime.
...
I am an educated man, as you see, a couple of certificates,
a couple of years of college, and I know better than this, and the
real issue is, I had no reason to do this. . . .
Ms. Gusby testified that she allowed the Defendant to return to her home in January
2008. The Defendant drove a burgundy-colored Ciera with a temporary “drive-out” tag. The
Defendant and she occasionally drank alcohol together, and the Defendant drank gin. She had
never heard of Everclear. She said that she had experience with the Defendant and knowledge
of his reputation for truthfulness. She said that the Defendant was “a very sick individual .
. . a master manipulator.”
On cross examination, Ms. Gusby testified that she helped the Defendant make bond
after his arrest. She did not believe at the time that the Defendant had purposely set the fire.
She ordered the Defendant out of her house because she caught him using crack cocaine and
spending money that he was not supposed to spend. She did not know that the Defendant
used crack cocaine before he came to live with her. She said she did not help the Defendant
post bond in an attempt to save their relationship, but rather to save the Defendant’s life. She
felt that “God had smacked him down, and . . . that this would turn him around, that this was
his last chance.” The Defendant showed her his tennis shoes and told her they were scorched
on the bottom.
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On redirect examination, Ms. Gusby testified that her opinion about whether the
Defendant intended to burn down the hotel had changed because she found out things about
him after he was arrested. She said that she saw the pictures from the crime scene and that
what they depicted did not match the Defendant’s story.
Captain Investigator Jeff Stooksbury of the City of Knoxville Fire, Explosive, and
Investigation Unit testified that he and Travis Kincaid responded to the Hamilton Inn fire. He
entered the bathroom but did not find any water in the bathtub. He said the bedding, except
for the bottom sheet, was pulled off the bed. He did not see any evidence that there had been
an open flame on the bed or that a person fell asleep and ignited a pillow while smoking a
cigarette. He did not see any staining on the wall or headboard where a pillow would
normally have been. On cross-examination, Captain Stooksbury agreed that the run report
showed that he was dispatched to the Hamilton Inn at 5:56 p.m., arrived at 6:02 p.m., and left
at 6:42 p.m.
The Defendant testified that he met Cheryl Gusby when he attended Bearden High
School. He said he moved to Texas for about twenty-eight years. He attended two years of
college and held technical degrees as a “PCA 3, certified nurse,” and as an asbestos and
insulation technologist. He worked as a nurse for ten years in Texas but left because the stress
affected his heart. During his employment as a nurse, he became addicted to crack cocaine.
He admitted to four arrests related to drug use. He was also convicted of burglary in 2002
because he was the lookout for others who attempted to steal money from a change machine
at a carwash in order to buy crack cocaine.
At some point, the Defendant and Ms. Gusby renewed their friendship, and he returned
to Tennessee. He had prior experience working in asbestos and insulation and obtained his
re-certification in Knoxville. He started working as the asbestos and insulation technician at
the TVA Plant in Sevierville.
The Defendant testified that he hid his past problems with crack cocaine from Ms.
Gusby. He said he started using cocaine again after he was employed because he was making
more money than he had in quite some time. After Ms. Gusby discovered his cocaine use,
they “fought and fought.” Ms. Gusby kept “close tabs” on the Defendant, and it became
difficult for him to use cocaine at home. The Defendant decided to move out. He moved to
the Hamilton Inn based on a referral from a coworker.
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The Defendant testified that he checked into the Hamilton Inn on his payday,
November 20, and signed a one-week lease. Most of his belongings were in the trunk of his
car. He did not bother moving many things into his room because his “whole goal” of going
to the hotel “was to use crack cocaine in peace.” He stayed high all night and did not sleep.
He said that he hid his crack pipe, which was made from a metal tire tool, in a hollow towel
bar located in the bathroom. He said he used Brillo to stuff one end of the pipe to keep the
cocaine inside the pipe and make it burn more slowly.
The Defendant testified that he did not go to work the next day, although Ms. Gusby
called him at 5:45 a.m. to wake him for work. He pretended he was asleep and thanked her
for waking him. He left the hotel because he was afraid that Ms. Gusby would come to check
on him. He drove around until he found a crack cocaine dealer, and he bought another $50
worth of cocaine. He went back to the hotel and smoked it. He continued his binge that night
and into the next day. He said he did not call his employer because the day before
Thanksgiving was an “optional” workday. He bought another $100 worth of cocaine at 3:00
or 4:00 p.m. He also bought pure grain alcohol to use in smoking it. After he returned to the
room, some of his clothes that had been on the chair were then on the floor. He thought that
Ms. Gusby had been in his room, and he went straight to the office. He said that he saw the
video recording of his coming into the office. He was nervous, and the crack cocaine also
made him jittery. He was not angry because “[i]f you got a hundred dollars worth of crack
in your pocket, and money, and somewhere to go with no one to bother you, ain’t nothing in
the world can make you angry.” The Defendant said that after Mr. Wensell showed him the
card reader, he understood that Ms. Gusby had not been in his room. He also said that he
asked Wensell to accompany him to his room because he was afraid that someone was hiding
in it. When the door opened, Wensell said, “Whoa, I smell smoke.” The Defendant realized
from Wensell’s reaction that Wensell had recognized the smell of crack cocaine smoke, and
he testified this was the reason he told Wensell not to worry about using the card reader. As
soon as Wensell left, the Defendant slid his dresser against the door because he was afraid that
someone would come into his room.
The Defendant testified that he ran a bath, took off his shirt, and placed it on the sink.
He went to his bed and put a prescription bottle containing pure grain alcohol on the table next
to the bed. He said he used the prescription bottle to hold the alcohol because that way he
would not have an open bottle of alcohol in his car. In addition, the prescription bottle was
easier to carry. He lay back and placed a pillow under his left arm, which was nearest the
table. The Defendant used forceps to hold a cotton ball, dipped the cotton ball into the
alcohol, and lit it. He used pure grain alcohol instead of a butane lighter because the butane
made him “cough up all of this black stuff.” He melted the crack cocaine with the lit cotton
ball. He said that he blew on the cotton ball to extinguish the flame but that he was paying
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attention to the crack pipe and not to the fire. He said he dipped the cotton ball back into the
container of alcohol, not realizing that it was still hot enough to flare up. He said that the
container of alcohol “blew up . . . it caught on fire.” The Defendant said the cotton ball
caught on the edge of the bottle as he pulled the forceps toward him. The flaming alcohol
“rolled down the forceps” toward the Defendant’s hand, and he dropped it. He stated that the
bottle of alcohol spilled onto the pillow and that the pillow caught fire. He said he flung the
bed covers into the floor because he did not want them to also catch fire. He grabbed the
pillow and ran to the bathroom because he had a tub full of water. He said that he made it to
the corner of the bathroom door before the pillow became too hot for him to hold and that he
dropped it. He said the flame burned about eighteen inches high at that point.
The Defendant testified that he grabbed the t-shirt that he left on the bathroom sink and
tried to fan at the flames to put out the fire. He realized the shirt was going to catch on fire,
so he threw it back onto the sink. He looked for something to use to pick up the burning
pillow and grabbed the towel bar that he had used to conceal his crack pipe, which was lying
on the bathroom counter. The Defendant also had a black case containing his tools with him
in the room, and he grabbed a socket wrench to use with the towel bar. He said that they went
“straight through” the pillow. When he tried to pick up the pillow, it fell in pieces to the floor.
He identified a picture of the towel bar where the pillow had melted onto its end. The
Defendant said there were burn marks on the floor where the pillow landed. He was still
wearing sneakers and stomped on the fire. He said the fire “went down” and he picked up the
pillow. He said that he turned and saw the fire extinguisher but that he had been too high to
have noticed it before. He said he dropped the pillow beneath the fire extinguisher, pulled the
fire extinguisher from the wall, but realized the pillow was no longer burning. He thought the
fire was out and did not spray the extinguisher. The Defendant said that the smoke detector
was beeping and that he took it down because he was afraid that someone would come to the
room. He said he left it beeping next to the pillow. He thought he needed to leave because
he had “dope everywhere.” He said he grabbed his drugs and started toward the door but
realized that the dresser was in the way. He moved the dresser enough to get out of the room
and took about five steps toward the office. He was still carrying the fire extinguisher. He
said that he remembered having crack cocaine in his pocket and that he was afraid the hotel
staff would call law enforcement. He was afraid to open the door to his room again because
the smoke would “whoosh out,” and he placed the fire extinguisher in the laundry room next
to his room, went to his car, and left.
The Defendant testified that he planned to drive around until the smoke cleared from
his room and then return to clean it. He called Ms. Gusby and asked for her help in cleaning
the room, telling her he had caused the fire when he was smoking a cigarette, not crack
cocaine, and she refused. He said he drove around for a while and smoked crack. He said he
-12-
began driving toward the hotel but realized before he arrived that he would want to smoke
crack after cleaning the room and would not want to leave the room again. He decided he
would purchase more cocaine first. He pulled into the Pilot station to purchase gasoline. He
went inside to pay and when he came back outside, the police were sitting “across” from him.
After he left the parking lot, he was stopped and arrested.
The Defendant testified that Investigator Kincaid was there and that he told Kincaid,
“You have ruined my Thanksgiving, you’re going to have me eating noodles.” He said he was
referring to “the facility out there . . . where noodles is the main meal . . . .” He denied that
he told Kincaid that he started the fire while making noodles because he had no pans or food
in his room. He said he did not walk away from Kincaid because he would not have been
allowed to walk away from the police. He knew there were people in the hotel. He said he
would “definitely not” have set fire to the hotel on purpose because he had been a nurse and
would never hurt anyone. He was not angry with anyone because he had everything he
needed at the hotel. He was not frustrated about being at the hotel instead of at Ms. Gusby’s
house because he had a bed, a refrigerator, a stove, ESPN, and crack cocaine. He said that
when he left the room, the fire was no longer burning because he stomped it out. He said that
the bathroom door was singed or charred.
On cross-examination, the Defendant testified that he was an educated man who knew
that alcohol could start a fire. He said he purchased pure grain alcohol because he was
looking for something that would burn. He agreed that the higher the proof of the alcohol,
the more likely it was to burn, and he wanted the highest proof available. He said that he had
heard of Everclear brand of pure grain alcohol. He had not noticed the labels on the Everclear
bottle that read, “Caution: Extremely Flammable.” He said he needed it to make a fire. He
was not surprised that another warning label read, “Caution: Do not apply to open flame.
Keep away from fire, heat and open flame. Contents may ignite or explode.” He said he
wanted the pure grain alcohol for that purpose. He said that he bought a half pint or a pint.
He poured some into the prescription bottle, mixed some with Mountain Dew, and threw the
rest away. The Defendant said that after spilling the prescription bottle of lit alcohol, he had
to use a lighter to smoke crack while he drove around in his car. He was not worried at that
point about using a butane lighter because he had fought a fire, he was nervous and shaky, and
he was just trying to get high.
The Defendant testified that when he returned to his room at 4:45 or 5:00 p.m., before
the fire, he did not notice that the room appeared smoky. He said he only focused on his
belongings. He agreed that although there was a telephone in the room, he did not call Ms.
-13-
Gusby and ask her if she had been in his room. He said that he looked in the bathroom and
under his bed before he told Mr. Wensell to leave.
The Defendant testified that after the pillow ignited, he took about five steps before
he dropped it. He said that he was holding the pillow in front of him when he dropped it at
the bathroom door and that he reached over the flames to grab his t-shirt off the sink. He said
that fanning the fire did not extinguish it. He could not say whether the shirt was burned. He
stated he did not think to turn on the water in the bathroom sink and throw some on the pillow,
although he agreed that he was taking the pillow to the bathroom to put it in the bathtub. He
said that he was not thinking clearly because he was high on crack cocaine. He said his
toolbox was on the counter next to the bed. He agreed that he had enough time to think about
his toolbox and to look for a socket wrench but that he did not think about getting water from
the sink or bathtub. He did not grab the fire extinguisher because he did not see it until after
the fire was out. He said the fire’s height decreased before he stomped on it. He could not
remember what he did with the towel bar and the socket wrench after he used them in an
attempt to move the pillow. He agreed that he had “enough wits” to take his forceps and
crack pipe after the fire was out. He said that the prescription bottle of pure grain alcohol had
been flattened and that he flushed it and the cotton ball in the toilet. After the Defendant saw
the fire extinguisher, he held it and stood by the pillow for a while. The pillow was
smoldering, and he was not sure whether it was going to start burning again. He was so
stunned by what happened that he could not say what made him carry the fire extinguisher
outside. He did not put the fire extinguisher down to move the dresser but pushed the dresser
out of the way with his hip. He did not know how the towel rack ended up on the dresser.
He agreed a globe fixture from the bathroom was on the dresser, but he said he did not put it
there.
The Defendant testified that he left to avoid being found at the hotel with crack
cocaine, not to get cleaning supplies. He stated that because he was an addict when he wrote
the letter to the NAACP, he could not remember whether he stated in it that he left to get
cleaning supplies. He agreed that he lied to Ms. Gusby and in the letter. He said that he lied
to Ms. Gusby “one hundred times.” He would not agree that he lied when it benefitted him
but admitted that he lied when it had to do with crack cocaine. He said that the fire was only
on the pillow and that he did not set fire to the items under the sink. He did not try to
extinguish the fire with a roll of toilet paper, but the toilet paper happened to be close to the
fire and was damaged. He said that if he were going to burn something, he would not try to
start the fire with a roll of toilet paper. He would not agree that a towel was wrapped around
the roll of toilet paper but said that it was his t-shirt. When asked if a glass crack pipe was on
the counter or the bed, he replied that he had about three crack pipes in case one overheated.
-14-
He could not say whether other people were at the hotel because he did not see any guests
when he checked in.
On redirect examination, the Defendant identified the shoes he wore on the night of
the fire. He said that he put the t-shirt and roll of toilet paper in the bathroom cabinet because
he was leaving and did not want anyone to come in and see them, which he agreed was silly.
He did not know whether the bathtub stopper worked well enough to hold water. When he
left the room, he did not pull the dresser back to block firefighters from getting into the room.
Stuart W. Bayne testified that he was certified by the National Association of Fire
Investigators as a Fire Explosion Investigator, as a Fire Investigation Instructor, and as a
Vehicle Fire Investigator. Mr. Bayne was accepted as an expert in fire origin. He said that
he reviewed the photographs from the scene, the law enforcement and fire department reports,
and the interviews. He examined the Defendant’s tennis shoes. He interviewed Mr. Wensell,
the Defendant, Mr. Davis, who was the previous manager of the Hamilton Inn, and Mr.
Martin, who was the current occupant of Room 136 at the Hamilton Inn. He defined the
scientific method that he used as “the recognition and formulation of a problem[.]” He said
that considering and testing a number of hypotheses was essential. He said that he employed
the scientific method in his analysis of this case and that he created field tests to replicate the
circumstances described by the Defendant. He said a defendant’s statements were often
“spun” and were sometimes “flat wrong.” He said that he attempted to verify or reject, in
whole or in part, a witness’s statements. He said that although he did not see the scene of the
fire, he had enough demonstrative and documentary evidence to arrive at an opinion of the
cause of the fire.
Mr. Bayne testified that the photographs indicated a single set of burn patterns but
showed no evidence of application of fire to any of the primary “fuel packages” in the room,
such as the bed, the dresser, or the chairs. He also conducted field tests in an attempt to
duplicate what he saw in the photographs. The Defendant had said that he attempted to pick
up the burning pillow with two makeshift tools and that the pillow fell through the tools. Mr.
Bayne learned the composition of the hotel pillows from Mr. Davis, the hotel manager, and
purchased pillows of the same composition. He conducted field tests in an enclosure designed
to reduce airflow and to create some semblance of an uninterrupted air pattern on a floor level.
He purchased a pair of tennis shoes and stomped on a burning pillow. He studied pure grain
alcohol’s combustion characteristics and determined that it burned very cleanly. He said that
it was almost impossible to see the flame from pure grain alcohol inside a container. Mr.
Bayne was surprised several times during his tests because he believed that he had
-15-
extinguished the cotton ball, but it reignited when he dipped it into the container of pure grain
alcohol. The container of alcohol was on fire, but the flame was nearly invisible. He burned
pillows both with and without pure grain alcohol, and he attempted to duplicate the burn
patterns on a linoleum floor. He also attempted to pick up the pillows with plastic and metal
makeshift tools. The pillow fabric was made of polyester and cotton, and the filling was one
hundred percent polyester, which was “essentially plasticized fabric.” He said that the
burning pillows fell apart, dripped, and wrapped around the tools like cotton candy. He said
that portions of the pillow congealed around the plastic tool and that the plastic tool began to
melt as well. He said that the Defendant’s account of what occurred in the fire was “quite
consistent” with the field tests that he conducted.
Mr. Bayne testified that no fire occurred in the bathroom cabinet because there was no
evidence of heat stains except on the material. He agreed that the items were tossed into the
cabinet after they had been burned. He said that the metal pole with the melted material on
it and the bathroom cabinet were not points of origin. He said that the photographs depicted
a space between the doorway and the bathroom that might have been a point of origin but that
after talking with witnesses, he believed that the point of origin was the interaction of the
burning pure grain alcohol and the pillow. Mr. Bayne also said that it was possible that the
fire began on the bed because a heat stain appeared to be on the end of the bed, which
validated the Defendant’s statements to him. When asked whether there were any
inconsistencies between his findings and the Defendant’s statements, he said that he did not
“trust what [the Defendant] stated to me about exactly how the pure grain alcohol landed on
the pillow . . . I cannot duplicate that in a field test. And it’s not shown in the photographs.”
He disagreed with another witness’s testimony that the fire could not have started on the bed.
He said the photographs showed that the box springs were covered in plastic and that the
plastic on the side of the box springs closest to the center of the room had shrunk and
shriveled. He said that plastic shrinks and shrivels when it is exposed to a heat source. He
said that the material strewn on the floor was inconsistent with a trailer. He questioned
whether the Defendant or the fire department had moved the material. He did not see a burn
pattern on the material or a consistent pattern from the linoleum floor to the edge of the bed.
Mr. Bayne testified that he duplicated the Defendant’s stomping on a burning pillow,
using similar tennis shoes. He wore the shoes for several hours after the field test in order to
replicate the Defendant’s actions on the day of the fire. He then compared the shoes that he
tested with the Defendant’s and determined that they had the same kind of melted or burned
polyester and plasticized fabric on the sides and bottoms. He said that because both of the
Defendant’s shoes had scorch marks on them, the Defendant stepped on the fire with both
feet, accidentally or intentionally. He said that if only one shoe had had scorch marks, it could
mean that the Defendant had tried to step over the fire. He said that in following the NFPA
-16-
921, a “guidance document,” he considered and rejected many other hypotheses. He rejected
completely the hypothesis that the Defendant attempted to burn down the hotel using a pillow.
There was no evidence of burn patterns or fires having been set on any of the fuel packages
of the room. He said that if the Defendant had really wanted to burn down the hotel, he likely
would have tried to use the fuels that were available in the room. He also based his opinion
on the field tests that duplicated the results of the fire.
Mr. Bayne testified that the pillow burned at a sufficient temperature to trigger the
sprinklers. He said that there was not an inconsistency between the Defendant’s testimony
that the fire was out when the Defendant left the room and the hotel personnel’s testimony that
the fire was still burning when they opened the door to the hotel room. He said that pillow
fires were “stubborn” and could continue “cooking” if they were not hit directly by water
spray. He said that his experiments burning the linoleum with the pillow were consistent with
the photographs from the fire. He spent between forty-seven and fifty hours working on the
case. Mr. Bayne said that he was very comfortable with his opinion that the fire was an
accident and “an unintentional consequence of an idiot doing something he shouldn’t have
been doing.” He said that he would not have been comfortable reaching the conclusion that
a criminal act occurred if he had spent only thirty minutes at the scene.
On cross-examination, Mr. Bayne testified that the Defendant was the only person he
interviewed with personal knowledge about the fire. He read a transcript of an interview with
Jon Wensell that he received from defense counsel. He did not review the tape from the
preliminary hearing or the 9-1-1 tape. He did not watch the video-recording of the Defendant
at the hotel because he said it had nothing to do with the damage from the fire. He did not
speak to Ms. or Mr. Delong. He believed that Mr. Wensell was the first person besides the
Defendant to look into the room. He was unaware that Ms. Delong had opened the door and
looked into the room before Mr. Wensell entered and that she testified she saw four fires. He
did not know that Ms. Delong said she saw a light fixture on top of the torch on the dresser.
He was not aware of the Defendant’s reputation for truthfulness when he interviewed the
Defendant or that the Defendant recounted three versions of how the fire started. He said that
just because the Defendant was a liar did not make the Defendant an arsonist.
Mr. Bayne testified that the fire consumed the bed pillows, portions of at least one bed
sheet, blanket, or bed cover, a portion of the lineleum floor located between the open
bathroom doorway, the bathroom door, and the door trim. There was also a small amount of
heat damage to the plastic wrap covering the bed’s box spring. He had not seen the
photographs that showed the burned smoke detector and the burned blue baseball cap. He saw
evidence of convective heat transfer on the bathroom doorway and evidence of charring on
-17-
the lineleum floor, the door, and the door trim. He identified “alligatoring” on the door frame,
which suggested that the fire accelerated and that the exposed wood surfaces cracked, heated,
and raised. He denied that alligatoring had any significance in this fire because the entire set
of burn patterns comprised only a small fire emanating from one place.
Mr. Bayne testified that he conducted field tests by constructing an enclosure. The
enclosure did not have a roof. He conducted six field tests on the pillows, burning four
pillows inside the enclosure and two outside the enclosure. The pillows took between 300 to
400 seconds to burn. He did not take photographs of the bottle of burning pure grain alcohol
but said that the flames were almost invisible except for a small blue tint. He did not subject
his field tests to peer review. He said that peer review was important in complex evaluations
and field tests. He considered Dave Icove to be an expert in arson and arson investigation.
He had recently taken a class from Mr. Icove but had not discussed the case with him. Mr.
Bayne would not agree that the Defendant’s statements were hypotheses, but he agreed that
the purpose of testing was to affirm or reject the hypotheses associated with the Defendant’s
statements. He wrote in his report that the Defendant was intoxicated, which he based upon
the Defendant’s statements to him. He said the Defendant’s condition had no bearing on the
damage to the room, but he agreed he wrote that his report attributed the fire to the
Defendant’s uncoordinated acts. He would not agree that the Defendant’s ability to drive a
car had any influence on whether the Defendant’s acts were uncoordinated.
On redirect examination, Mr. Bayne testified that he examined two statements from
Mr. Wensell, one made on July 7 and the other made on October 24, 2007. He reviewed the
Knoxville Police Department Crime Report and the Knoxville Fire Department Incident
Report. He was furnished a copy of Investigator Kincaid’s rebuttal to his report, but he had
been unable to obtain a statement from Investigator Kincaid. He said Investigator Kincaid’s
rebuttal report did not include a statement of the origin and cause of the fire. He went to the
Hamilton Inn and was informed that the Delongs no longer worked there. He tried for several
weeks to arrange interviews with the firefighters through the city law department.
Mr. Bayne testified that the alleged trailer might have been unintentional or intentional
but that no fire pattern or indication of movement of fire was on the trailer. He said the
question remained whether the materials comprising the alleged trailer were found in that
location or were moved by Mr. Wensell or the firefighters. He did not see anything in the
photographs of the scene that were inconsistent with his findings. He did not see evidence
of more than a single set of burn patterns in the linoleum floor. He said that if there had been
four fires, there would have been four burn patterns. No evidence of burn patterns was inside
the bathroom cabinet, and no evidence of a burn pattern associated with the torch was on the
-18-
dresser. He said the videotape showed that the sprinkler system was activated three minutes
after the Defendant left the hotel room. The trial court stated that the photograph depicted two
distinct burn areas on the floor on the either side of the door jamb and that an unburned space
was between them. In response, Mr. Bayne said that it could have been caused by one pillow
with fabric against the floor that did not burn, by one pillow with both ends burning toward
the middle, or by bedding in between burning pillows. The trial court stated that the wooden
bathroom door appeared to have been exposed to flame for some time. Mr. Bayne replied that
the bathroom door was a hollow core door and would not have lasted more than six minutes
in any fire. He said that the door trim showed a baked appearance, not alligatoring, and the
wood had expanded and cracked as the moisture was drawn out of the wood.
Mr. Bayne testified that an object could have shielded the area of the unburned floor
between the two burned areas and caused one fire to look like two fires. He agreed that a
photograph of the scene showed the Defendant’s black bag, a burned object, and burned
material.
In rebuttal, David Icove testified that he was a reserve deputy sheriff assigned to the
Knox County Fire Investigations Unit. He authored Forensic Fire Scene Reconstruction and
served on the advisory panel for NFPA 921, a standard of care for fire investigation. He
discussed the case with Investigator Kincaid and Captain Stooksbury and spent several days
reviewing the investigation reports and associated documents, the photographs, and Mr.
Baynes’s report. He was not paid for the time he spent working on the case. He said that the
picture of the damage to the doorframe indicated that a fire burned directly below it. He was
not able to determine how long the fire burned, but he estimated that the size of the fire was
consistent with a trash can fire that had burned at about 100 watts. He said that without the
sprinkler system, the fire could have been very disastrous. From photographs of the scene,
he identified a trailer that connected from the bedroom to the kitchen and the bathroom.
Mr. Icove testified that Mr. Baynes’s tests were correctly performed field tests, not fire
tests. He said Mr. Bayne did not use thermocouples to measure temperature or a smoke
detector. He said that the cubicle Bayne constructed in order to conduct field tests had only
a floor and walls but not a roof and that it was important to attempt to recreate the scene. It
was also important to have peer review to avoid expectation bias. He said that Bayne
suggested other hypotheses or causes for the fire, but Bayne did not explore them in depth the
way that Investigator Kincaid had. He stated that when an investigator discounts hypotheses
without testing them, he falls short of the guidelines and standards in NFPA 921. He said that
he was not asked to form an opinion about the origin of the fire.
-19-
On cross-examination, Mr. Icove testified that he reviewed Investigator Kincaid’s
reports. He said that both reports showed that Investigator Kincaid considered and properly
tested various hypotheses. He said that, for example, Investigator Kincaid used the scientific
method and reported evidence that the fire alarm and extinguishers were tampered with and
that the door was blocked. When asked if the information in Investigator Kincaid’s report
came from observations and not scientific tests, Icove replied that Investigator Kincaid’s
observations were based on prior information and training and on facts that were reported to
Investigator Kincaid during the investigation. When asked to identify where Investigator
Kincaid’s report stated that Kincaid had considered other hypotheses for the cause and origin
of the fire, Mr. Icove referred to Investigator Kincaid’s second report. He did not know when
the second report was prepared, and he disagreed that the second report should have been
prepared near the time of the first report in order to be valid. He said that a report was valid
if it was prepared “before court.” He was not troubled that Kincaid’s second report was
prepared in rebuttal to the defense expert’s report. He could not identify additional
hypotheses that were considered and rejected based on the scientific method in Kincaid’s first
report. Mr. Icove said that Kincaid’s second report discussed the hypotheses of electrical
failures, ignitable liquids, accidental fire, and other behavioral actions. He agreed that the
application of the scientific method needed to be deliberate and that an investigator needed
to refrain from jumping to conclusions. He said that it was possible to reach a conclusion
about a fire within thirty minutes of arriving at a fire scene. He could not say whether Mr.
Bayne’s conclusion was stronger based on the amount of time that Bayne spent conducting
field tests. He said that cost was sometimes a factor in conducting field tests. He said it
would be better to rely on another person’s tests, calculations, or evaluations if money were
not available to reconstruct a scene.
The trial court found that the Defendant was not a credible witness and found the
Defendant guilty of aggravated arson. The trial court sentenced the Defendant to twenty years
in the Department of Correction.
I
The Defendant contends that the evidence is insufficient to support his conviction. The
State contends that the evidence was sufficient to support the Defendant’s conviction for
aggravated arson. We agree with the State.
Our standard of review when the sufficiency of the evidence is questioned on appeal
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 (1979). This means that we may not reweigh
the evidence, but must presume that the trier of fact resolved all conflicts in the testimony and
-20-
drawn all reasonable inferences from the evidence in favor of the state. See State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
However, when a trial court bases its findings of fact on evidence that does not involve an
issue of credibility, such as a videotape, this court may review that evidence de novo. State
v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000).
As pertinent to this appeal,
(a) A person commits aggravated arson who commits arson as
defined in [Code section] § 39-14-301 . . . :
(1) When one (1) or more persons are present
therein; . . . .
T.C.A. § 39-14-302(a)(1) (2006). A person commits arson
who knowingly damages any structure by means of a fire or
explosion:
(1) Without the consent of all persons who have a
possessory, proprietary or security interest therein;
....
Id. § 39-14-301(a)(1). A person acts knowingly with respect to the result of his aggravated
arson when he is aware that his conduct is reasonably certain to cause the result. Id. § 39-11-
106(a)(20). Aggravated arson is a Class A felony with a sentencing range of fifteen to sixty
years. Id. §§ 39-14-302(b), 40-35-112.
In his brief, the Defendant argues that the evidence supports a determination that he
set the fire intentionally or recklessly, but not knowingly. We conclude that the evidence is
sufficient to support the Defendant’s conviction. Taken in the light most favorable to the
State, Investigator Kincaid testified that there was more than one place which showed
evidence of burning. The bedding on the floor was burned, a burned torch was on the dresser,
a pile of burned bedding or a burned pillow was next to the bathroom door, and an unburned
torch was found in the bathroom. In addition, the room’s smoke detector was disabled and
the room’s fire extinguisher was removed, showing that the Defendant was aware of the result
of his actions. Ms. Delong testified that she saw four areas that were burned and that the
dresser was moved in front of the door, blocking entry into the room. She saw burned toilet
paper under the bathroom sink, a burned towel rolled around a curtain rod, and a pile of
burned linens at the foot of the bed. Randy Delong testified that he saw “separate little fires
-21-
set throughout the room.” He saw singed toilet paper inside the bathroom cabinet. Jon
Wensell testified that he saw torches on the dresser and the sink and burned bedding on the
floor. Although the defense expert testified that he believed the fire was accidentally set, the
State’s expert and the rebuttal expert testified that the fires were consistent with arson. The
building was a hotel which was at maximum occupancy because of the Thanksgiving holiday.
The Defendant told Ms. Gusby that he set a pillow on fire while smoking a cigarette. He told
the police the same story. At the trial, the Defendant admitted that he set the fire, but he
claimed that he set it accidentally while smoking crack cocaine. The trial court found that the
Defendant was not credible. We conclude that a rational trier of fact could have found the
elements of aggravated arson beyond a reasonable doubt. We hold that the evidence is
sufficient to support the Defendant’s conviction for aggravated arson.
II
The Defendant contends that the trial court erred in failing to exclude Investigator
Travis Kincaid from the courtroom pursuant to the Rule of Sequestration, Tennessee Rule of
Evidence 615. The State contends that the trial court properly exempted Investigator Kincaid
from the Rule of Sequestration because he was designated the prosecuting witness and his
presence was essential to the State’s prosecution of the case. We agree with the State.
Rule 615 of our Rules of Evidence provides:
At the request of a party the court shall order witnesses, including
rebuttal witnesses, excluded at trial . . . . The court shall order all
persons not to disclose by any means to excluded witnesses any
live trial testimony or exhibits created in the courtroom by a
witness. This rule does not authorize exclusion of (1) a party
who is a natural person, or (2) a person designated by counsel for
a party that is not a natural person, or (3) a person whose
presence is shown by a party to be essential to the presentation of
the party’s cause . . . .
The Advisory Commission Comments to this section note that, for example, subsection (3)
allows an expert witness to remain in the courtroom to assist counsel in understanding
opposing testimony or to learn relevant facts available only through hearing testimony. Tenn.
R. Evid. 615, Advisory Comm’n Cmts. An expert witness may need to hear the substance of
other witnesses’ testimony in order to formulate an opinion or to respond to another expert
witness. See Tenn. R. Evid. 703.
-22-
In addition, the State’s designated representative is allowed to remain in the courtroom
pursuant to subsection (2). Id.; see State v. Stephens, 264 S.W.3d 719, 738-39 (Tenn. Crim.
App. 2007). The State’s designated representative may be the victim of a crime, the family
member of a victim of a crime, or an investigating officer. Tenn. R. Evid. 615, Advisory
Comm’n Cmts. A designated representative or prosecuting witness, however, is required to
testify before other witnesses. See Stephens, 264 S.W.3d at 738-39; State v. Smartt, 80 S.W.
586, 588 (Tenn. 1904); Mothershed v. State, 578 S.W.2d 96, 100-01 (Tenn. Crim. App. 1978).
Unlike expert witnesses, whose exception from sequestration is a matter of judicial discretion,
the exception from sequestration of the State’s designated representative is a matter of right.
Tenn. R. Evid. 615, Advisory Comm’n Cmts; Stephens, 264 S.W.3d at 738. When a State’s
designated representative does not testify first, the Defendant is entitled to relief only if the
Defendant can show prejudice as a result. Stephens, 264 S.W.3d at 739. In order to show
prejudice, a Defendant must show that a witness improperly changed his testimony after
hearing other witnesses testify. See State v. Sexton, 724 S.W.2d 371, 374 (Tenn. Crim. App.
1986) (holding that absent proof that detective changed testimony after hearing other
witnesses, failure to testify first did not affect the results). In contrast, an expert witness who
remains in the courtroom may generally testify after hearing other witnesses’ testimony. See
Tenn. R. Evid. 703; State v. Bane, 57 S.W.3d 411, 423 (Tenn. 2001).
In this case, Investigator Kincaid was not only the State’s designated representative,
but he was also the State’s expert witness. Investigator Kincaid was properly allowed to
remain in the courtroom pursuant to the sequestration exceptions embodied within Rule of
Evidence 615. As an expert witness, Investigator Kincaid was permitted to testify after
hearing other witnesses’ testimony. Moreover, the Defendant has failed to show how he was
prejudiced as a result of Investigator Kincaid testifying after Ms. Delong, Mr. Delong, and
Mr. Wensell. As an expert witness, Investigator Kincaid’s testimony was based in part upon
his reports, which were filed before the trial. Although the Defendant claims that Investigator
Kincaid testified to more information than was contained in his report, Investigator Kincaid
personally investigated the scene of the crime and related the details of his observations.
Nothing in the record suggests that Investigator Kincaid changed his testimony after hearing
other witnesses. As a result, the Defendant has failed to show prejudice, and he is not entitled
to relief on this issue.
III
The Defendant contends that the trial court erred in permitting the State to call Dave
Icove as a rebuttal witness. He asserts that he did not receive a copy of Icove’s report or
notice that Icove would testify. He also claims that Icove gave improper rebuttal testimony
by testifying about the quality of Investigator Kincaid’s work, about the size of the fire, about
Mr. Bayne’s field tests, and about his own conclusions about the fire. The State contends that
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the trial court properly allowed the State to call a second expert to rebut the Defendant’s
expert. We agree with the State.
The State first contends that the Defendant has waived this issue for failing to object
contemporaneously and by assenting to the trial court’s curative measures. See T.R.A.P.
36(a). The record reflects that the Defendant objected to the nature of the rebuttal testimony
at least three times and that defense counsel engaged in several discussions with the trial court
and the prosecutor regarding the propriety of Mr. Icove’s rebuttal testimony. The Defendant
has not waived this issue on appeal.
The admissibility of rebuttal evidence lies in the trial court’s discretion and will not be
overturned on appeal unless there has been a clear abuse of discretion. State v. Dellinger, 79
S.W.3d 458, 488 (Tenn. 2002). Rebuttal evidence includes “any competent evidence which
explains or is in direct reply to, or a contradiction of, material evidence introduced by the
accused.” Nease v. State, 592 S.W.2d 327, 331 (Tenn. Crim. App. 1979). Rebuttal evidence
must be relevant and material to the facts at issue. State v. Lunati, 665 S.W.2d 739, 747
(Tenn. Crim. App. 1983). A Defendant’s discovery request for names of the State’s witnesses
does not include rebuttal witnesses. See State v. Teel, 793 S.W.2d 236, 246 (Tenn. 1990),
superseded by statute as stated in State v. Reid, 91 S.W.3d 247 (Tenn. 2002). The State’s duty
to disclose the names of witnesses is directory, not mandatory. Dellinger, 79 S.W.3d at 489.
We note that the State was not required to disclose Mr. Icove’s name as a rebuttal
witness. The record reflects that Mr. Icove did not prepare a report.
The Defendant’s expert, Stuart Bayne, testified about the field tests he created and used
to conclude that the Defendant accidentally set the fire. He criticized the techniques employed
by the State’s expert, Investigator Kincaid. Mr. Bayne relied upon the NFPA 921 and
considered Dave Icove to be an expert in arson investigation.
Mr. Icove’s testimony was used to contradict evidence introduced by the Defendant
and was proper rebuttal testimony. Icove testified that he reviewed both experts’ reports and
also spoke with Investigator Kincaid and Captain Stooksbury. Mr. Icove said that Mr. Bayne
used an improper scientific method. He said, however, that Kincaid’s method was
scientifically proper and that Kincaid developed and rejected multiple hypotheses. The record
reflects that Icove’s testimony did not exceed the information contained in the experts’ reports
and the photographs he was shown during the trial. Icove also testified to the size of the fire
and the evidence of a “trailer” based upon the reports and the photographs. His expert
observations were used to contradict Bayne’s expert observations. Icove criticized the manner
of Bayne’s field tests, upon which Bayne based his ultimate conclusion that the fire was
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accidentally set. Finally, on cross-examination, the following exchange occurred between
defense counsel and Mr. Icove:
[Defense Counsel]: So if an opinion was formed by
[which]ever expert within 30 minutes, it’s
not automatically presumptive?
[Mr. Icove]: Are you asking me what I would have
done?
[Defense Counsel]: Yes, sir.
[Mr. Icove]: Given the facts and circumstances, what I
read in both reports, what I saw in the
fire scene photographs, as well as the
witness statements and the totality of the
circumstances –
[Defense Counsel]: I’m worried about your answer now,
because I’m not sure you’re answering my
question –
[Mr. Icove]: I would have arrived at the same conclusion
that Investigator Kincaid did, which was –
[Defense Counsel:] – that’s not my question.
[Mr. Icove]: That’s what you asked me.
Mr. Icove’s testimony was proper rebuttal, and it was the Defendant on cross-
examination who expanded the scope of Icove’s testimony to include a conclusion. The trial
court did not abuse its discretion in allowing Icove’s rebuttal testimony.
In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.
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JOSEPH M. TIPTON, PRESIDING JUDGE
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