The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 24, 2010
STATE OF TENNESSEE v. DAVID WILLIAM COSGRIF, III
Direct Appeal from the Criminal Court for Roane County
No. 12963B E. Eugene Eblen, Judge
No. E2009-02547-CCA-R3-CD - FILED OCTOBER 21, 2010
The defendant, David William Cosgrif, III, was convicted by a Roane County jury of second
degree murder, a Class A felony, and theft over $1000, a Class D felony, and was sentenced
by the trial court as a Range I offender to an effective term of twenty years in the Department
of Correction. He raises essentially three issues on appeal: (1) whether the evidence was
sufficient to sustain his second degree murder conviction; (2) whether the trial court
erroneously admitted scientific testimony that did not meet sufficient indicia of reliability;
and (3) whether the trial court imposed an excessive sentence for the murder conviction.
Following our review, we affirm the judgments of the trial court but modify the defendant’s
sentence to fifteen years.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
as Modified
A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
T HOMAS T. W OODALL, J., joined.
Bruce E. Poston, Knoxville, Tennessee, for the appellant, David William Cosgrif, III.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Russell Johnson, District Attorney General; and Frank Harvey, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
This case arises out of the murder of a seventy-six-year-old woman, Kathleen Taylor,
whose decomposed remains were found in rural Roane County on December 27, 2003,
approximately two years after she mysteriously disappeared from her Harriman home. The
defendant, who lived with the victim, aroused the suspicions of police by the fact that he
remained in her home after her disappearance, forged checks drawn on her bank account,
used her debit card and vehicle, and offered varying stories to account for her whereabouts
and his possession of her property. Eventually charged with the first degree premeditated
murder of the victim and two counts of theft over $1000, he was tried before a Roane County
jury from July 7-9, 2009.
State’s Proof
Alex Zamisz, the victim’s grandson, testified that his brother, Chris Zamisz, and the
defendant, who was Chris’s friend and possibly his lover, moved in late 2001 with the victim
from Texas to Harriman, Tennessee, where the victim bought a home that Chris Zamisz and
the defendant were supposed to be remodeling. Zamisz stated that his brother, Chris, came
back to Texas a few days after the victim’s move to Tennessee and, due to a severe ankle
injury that left him bedridden for a time, remained there until the summer of 2002 when the
defendant picked him up and took him back to Tennessee.
Zamisz testified that the last time he spoke to the victim was shortly after her move
to Tennessee. He said he heard from his brother in February 2002 that the victim had gone
to Florida for knee surgery and from the defendant in the summer of 2002 that the victim was
still enjoying her visit with her friends in Florida. He stated that the defendant was evasive
when he asked how to get in touch with the victim, telling him that the victim was still
recuperating and did not want to talk to anyone.
Zamisz testified that the victim was heavyset but had had no difficulty climbing the
stairs in his home when she visited him immediately before her move to Tennessee. He said
he had never known the victim to use a computer or email. When, however, he expressed
renewed concern for her welfare after six months had elapsed since he had last heard from
her, his brother forwarded him an email that purportedly had been sent by the victim to his
brother at the Harriman home. In the email, the victim stated that she was fine but did not
want to be bothered by her family. The victim also threatened to cut the family out of her
will if they persisted in bothering her. According to Zamisz, the victim “would never talk
like that.” He described the victim as a woman who was tight with her money and said that
she was particular about whom she allowed to drive her pickup truck. He also said that he
had never heard of Ed and Marge Carroll, the friends with whom the victim was reportedly
staying in Florida.
Michael Goins, who was a lieutenant with the Harriman Police Department in July
2002, testified that on July 2, 2002, he was sent to perform a “welfare check” on the victim
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at her Harriman home. He said that the defendant and Chris Zamisz, who answered the door
together, told him that the victim had gone to Florida for knee surgery. They were unable,
however, to provide him with her contact phone number, address, city, the names of the
individuals with whom she was staying, or the hospital at which she had had her surgery. He
said he asked the men about the activity that was taking place on the victim’s debit card, and
they explained that they had permission to use the account because they were remodeling the
residence. Goins testified that sometime later he responded to a hang-up 911 call from the
residence, asked to search the home, and found an individual hiding in the closet. He saw
no signs of the victim, however, and no complaint ever arose as the result of that call.
Mark McKinney testified that he was hunting in a wildlife management area in Roane
County early on the morning of December 27, 2003, when he noticed a human skull on the
ground approximately thirty feet from the woods road he had used to access the hunting area.
Lieutenant Robert Anderson of the Roane County Sheriff’s Department testified that
he responded to McKinney’s December 27, 2003, call about the skull, which was located in
an area that was approximately two and a half to three miles from Riggs Chapel Road.
Deputy Robert Childs, Jr. of the Roane County Sheriff’s Department testified that he
collected into evidence the bones found on December 27, 2003, and turned them over to Dr.
Jantz with the University of Tennessee Anthropology Department. He said that with the help
of a cadaver dog, he and other officers found additional bones in the area on January 21 and
January 23, 2004. On cross-examination, he testified that during his search on December 27,
2003, he discovered a shallow grave with a femur bone protruding up through the dirt, which
was located between the gravel logging road and the skull.
Officer Kelly Jackson of the Kingston Police Department, who was formerly
employed with the Roane County Sheriff’s Department, assisted in the collection of the
bones discovered by the cadaver dog on January 21 and January 23, 2004, and later delivered
them to the University of Tennessee’s Anthropology Department.
Dr. Lee Meadows Jantz of the University of Tennessee’s Anthropology Department,
who was accepted by the court as an expert in the field of forensic anthropology, testified that
she determined that the recovered bones came from a human female of Caucasian or
European origin who was at least sixty years of age. Although she had no dental records to
work from, she was able to positively identify the remains as those of the victim by
comparing the victim’s frontal sinus cavity on an x-ray of her skull, obtained from her
medical records, to the frontal sinus cavity on the x-ray of the skull found in the woods. Dr.
Jantz explained that each individual’s frontal sinus cavity, similar to his or her fingerprint,
is unique and that she “made a positive match on at least eight points,” which was a
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significant number, in her comparison of the x-rays. She said that a colleague, Dr. Angie
Christianson, had conducted a study to determine the likelihood of misidentification through
comparison of frontal sinuses and “was able to show that it’s simply not going to happen.”
She testified that Dr. Christianson had written a peer-reviewed article on the topic, which in
2004 was published in the American Journal of Physical Anthropology, a peer-reviewed
magazine subject to scientific scrutiny and accepted in the scientific community of forensic
anthropology. She said that Dr. Christianson had concluded the article with the following
statement: “Each individual’s frontal sinus outline is distinctly and quantifiably different at
a highly significant level.”
Dr. Jantz also noted the presence of healed nasal fractures on the skull that were
consistent with the radiologist’s report, contained in the victim’s medical records, of nasal
fractures that the victim had sustained during a home invasion in Chicago. Based on the
evidence of rodent activity on the bones but the lack of evidence of “exfoliation,” or flaking,
Dr. Jantz estimated that the remains had been at the site “between one and two years
minimum but no longer than five.” She said she found evidence of unhealed blunt force
trauma, which occurred at the time of death, to the left side of the skull and face. She further
testified that she found three neck vertebra within the pelvic inlet inside the shallow grave,
which indicated that the body “was allowed to decompose for a certain period of time” before
burial at the site.
On cross-examination, Dr. Jantz acknowledged that DNA analysis was not performed
on the bones. She said that her assistant and several of her graduate students confirmed her
eight-point match of the sinus cavity x-rays and that no one senior to her at the university
reviewed her work because she was the most senior member of the department. She testified
that she used Dr. Christianson’s paper to “show statistical probabilities” of her identification
of the skull, and she acknowledged that Dr. Christianson was the only person who had
published anything on that particular topic. She conceded that it was more likely that the
blow that caused the blunt force trauma to the victim’s head was delivered from someone
standing either in front or to the side of the victim rather than behind her.
On redirect examination, Dr. Jantz testified that there were numerous published
papers, some of which dated from the 1940’s or 1950’s, on the identification of individuals
by their sinus cavities and that the purpose of Dr. Christianson’s work “was to actually
provide the statistical evidence that frontal sinuses can be used as a unique identifier.”
James Kirkland testified that he became acquainted with the defendant, who
introduced himself as “Kawika Taylor,”when the defendant stopped by his home as he was
doing yard work. The defendant told him that his father lived in Hawaii and was a physician
and a retired admiral with the United States Navy, and in later conversations he implied that
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his family was wealthy. Kirkland never met the victim, but he recalled having heard that an
elderly woman lived with the defendant at one time. He said that about four months after he
met the defendant, the defendant introduced him to a young man that he identified as his
nephew. Kirkland testified that he took the defendant on sightseeing trips to several areas
of interest in the county, including some old coke ovens located on Rockwood Mountain past
Jolly Road, where the defendant took photographs. On cross-examination, he agreed that the
defendant, whom he described as a “non-violent person,” was not as vigorous a man as he
was.
John Bales testified that the victim, an older, “solid, pretty good size woman” of
average height who appeared to weigh approximately 300 pounds, hired him to perform
various repairs on her home. He said that the defendant, who called himself “Kawika
Taylor,” identified himself as the victim’s nephew and that he initially consulted him about
how he should perform the work. The victim, however, soon made it clear to him that it was
her house and that she was the one who would direct his work. Bales said that, although
heavy, the victim got around well and that he once saw her high on an extension ladder
painting the gable underneath her roof.
Bales testified that after a few months he no longer saw the victim. When he later
asked the defendant about her, the defendant told him she had gone to Florida to have knee
replacement surgery. Bales said he continued to work at the home for only a few days after
his last sighting of the victim; the defendant stopped calling him for repair work and it
appeared to him that the defendant no longer wanted him at the house. Soon thereafter, he
was driving by the victim’s house when he noticed that some of the windows were covered
with aluminum foil, which struck him as strange because the victim had expressed a desire
for more light in the home. He also noticed that a young man and woman were staying at the
house for a time.
Bales further testified that he was once riding a dirt bike on Riggs Chapel Road when
he saw the victim’s pickup truck being driven rapidly down the road and then saw the
defendant pulled in beside an old abandoned house. He said he later asked the defendant
what he had been doing, and the defendant replied that he was doing the taxes for a woman
who lived out that way. Bales stated that he saw the victim’s truck on that road on one or
two other occasions as well.
Kimberly Dagnan testified that the defendant, who introduced himself as “Kawika
Taylor,” told her that he had inherited his home from his deceased grandmother. She said
that she and her husband later moved into the home at the defendant’s request to help him
fix it up. The arrangement only lasted a couple of months, however, because the defendant
had a volatile personality, appearing calm one minute and becoming enraged the next.
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According to Dagnan, the defendant kept a locked room in the house and “would flip spastic
about it” if anyone approached it. She never saw the victim and never heard the defendant
mention anything about anyone having knee surgery.
Cynthia Gouge, who in 2002 lived next door to the victim’s Harriman home, testified
that the defendant introduced himself as “Kawika Taylor” and told her that he was the
victim’s nephew. In addition, he said that his father was a heart surgeon, that he had a large
trust fund and was very wealthy, that he had been born in Hawaii and had grown up in Oak
Ridge, that his mother was wealthy and traveled extensively, and that he was related to Lady
Bird Johnson. Gouge said she never met the victim but saw her outside the home
approximately twice. The defendant later told her that the victim had bad knees and had
gone to Florida for knee surgery. Gouge testified that at some point she met the victim’s
grandson, Chris, who was not as friendly as the defendant. She said that Chris and the
defendant left sometime in July or August 2002, telling her that they were going to Cape Cod
to get some money from their trust fund and that they would return. She stated that the men
asked her to water their plants for a couple of days while they were gone, but they never
came back. On cross-examination, Gouge acknowledged that the defendant was always
pleasant and friendly.
William Gouge, Cynthia Gouge’s husband, corroborated his wife’s account of the
tales the defendant told about his background and his relationship to the victim and testified
that the defendant later accounted for the victim’s absence by saying that she had gone to
Florida to recover from a knee injury.
James Campbell testified that the defendant, who introduced himself as “Kawika
Taylor,” told him that he was an attorney from Corpus Christi, Texas, and had just purchased
a home in Harriman. At a later point, however, the defendant changed his story, telling
Campbell that he had inherited the home and that it was tied up in probate.
Tracy Liverman, who in 2001 and 2002 was an employee of the Harriman bank where
the victim had deposited her money, testified that the defendant periodically came into the
bank with the victim, but the victim never introduced him and never put him on her accounts.
She said the last time anyone at the bank saw the victim was on February 25, 2002, when the
victim came in to place a stop payment order on a check. The Department of Human
Services later contacted the bank because the victim’s daughters had filed a missing person’s
report on the victim, and at their request the bank cancelled the victim’s debit card in July
2002. Afterwards, a man who was obviously attempting to disguise his voice as a woman’s,
and whom she recognized as the defendant, called her at the bank and, claiming to be the
victim, told her that “she” had been traveling with a friend and was fine. A few days later,
the defendant came into the bank to inquire in person about the cancelled card.
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Agent Jason Legg of the Tennessee Bureau of Investigation testified that he was
unable to uncover any record of the victim’s having received any medical treatment, either
in Florida or Tennessee, after January 2002 when she received a flu shot in Harriman.
Detective Thomas Bowler of the Pittsville, Massachusetts Police Department, who
arrested the defendant in Pittsville, testified that when he explained to the defendant that he
had been arrested on a fugitive from justice warrant that was based on a murder charge from
Tennessee, the defendant responded that he did not understand why he was being charged
with the victim’s murder and that he had taken care of her and worked on her house.
Detective Bowler stated that no one, at that point, had mentioned the victim’s name to the
defendant. On cross-examination, he testified that Chris Zamisz and a man named Richard
Shipley were living with the defendant at the time of his arrest.
James Taylor, who had been housed in the same cell block as the defendant in the
Anderson County Jail, testified that the defendant, who knew that Taylor’s mother was an
attorney, told him that the State’s case against him was entirely circumstantial and inquired
if Taylor’s mother would represent him. The defendant then related that he and Chris Zamisz
had come up with the idea to kill the victim for her money after the victim reneged on her
promise to provide funds for the defendant to open a stained glass window business. The
defendant said he had carried out the plan while Chris Zamisz was in Texas, taking the victim
to the woods or the mountains under the pretense of looking at some houses to gain
remodeling ideas for her home, hitting her in the head, and then hiding her body. According
to Taylor, the defendant also related that he had moved the victim’s body at a later point and
that it was easier the second time “because she was so decomposed.” Taylor testified that
he found the defendant’s revelations about killing a seventy-six-year-old woman and then
moving her decomposed body disturbing, which was why he had contacted the police. He
denied that he had been promised anything in exchange for his testimony and said that he
expected to serve the remainder of his sentence for violating probation by driving on a
suspended license.
On cross-examination, Taylor acknowledged having said in his statement to police
that the defendant told him he had hit the victim in the head while walking behind her in the
woods. He said the defendant never told him what he had used to hit the victim and that he
never thought to ask him. He testified that the underlying offense for which his probation
had been violated was possession of drug paraphernalia.
Chief Randy Heidle of the Harriman Police Department testified that within a day or
two of the July 2, 2002, “welfare check” on the victim, he followed up by interviewing the
defendant and Chris Zamisz at the victim’s Harriman home, where the men gave the same
account of the victim’s whereabouts that they had given to Officer Goins. He testified that
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in the written statement the defendant provided, he said that the victim had fallen and injured
herself on the front walk on January 11, 2002, and on April 10, 2002 had left with her new
friends, Ed and Marge Carroll, to go to Florida for knee surgery. The defendant also stated
that the victim had been communicating with him via email at least once a week and that she
had expressed fear that her daughters would take her assets and move her into a nursing
home.
Chief Heidle testified that he obtained a search warrant for the victim’s home after the
defendant and Chris Zamisz left for Massachusetts in August. During the search, he
discovered some areas in the backyard “where it looked like there had been some graves.”
He did not, however, find any of the victim’s remains at the home. Chief Heidle testified that
the wildlife management area where the remains were eventually found was in the same
general area as Riggs Chapel Road and Jolly Road. He said he was unable to locate any
dental records on the victim and learned from her family that she usually had dental work
performed by students at dental schools. He stated that he was unable to find any individuals
by the names of Ed and Marge Carroll. Finally, he testified that he did not recall any
information having been released in the news about the grave site or the victim’s body having
been moved, which led him to believe that James Taylor had learned the details of the crime
from someone with first-hand knowledge of the events.
On cross-examination, Chief Heidle acknowledged that a letter the defendant wrote
to Taylor’s mother contained none of the revelations that Taylor claimed the defendant had
made to him but was instead consistent with the defendant’s statement to Chief Heidle. He
further acknowledged that the victim’s bank statements showed only small cash withdrawals
and purchases at stores like Walmart and Home Depot and that the C.I.D. unit of the
Pittsville, Massachusetts Police Department, which had examined the victim’s pickup, found
no evidence that decomposed human remains had been transported in the vehicle.
Defendant’s Proof
Bryon Goodman testified that he was a staff member at Miracle Lake Christian
Training Center, a residential treatment center where the defendant had been admitted in
April 2008 due, in part, to the fact that his health had been deteriorating while he was housed
in the jail. Goodman said that the defendant had done well at Miracle Lake and had never
had a conflict with anyone. On cross-examination, he acknowledged that he knew nothing
of the defendant’s state of health in 2002.
The sixty-six-year-old defendant, in often tediously lengthy testimony, described how
he had befriended Chris Zamisz in California and let him move in with him. He said that
Chris lived with him for approximately twelve years and eventually introduced him by
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telephone to the victim. He described having bonded with the victim through their common
experiences and said that when she expressed an interest in locating “a charming abode” to
purchase in North Carolina or Eastern Tennessee, he offered to help her. He stated that he,
Chris, and the victim drove around the area looking at numerous properties until they found
the “magnificent” but run-down house in Harriman, which the victim purchased in October
2001 with the idea of restoring. According to the defendant, the victim had plans to set Chris
up in business while she did “stained glass and . . . things in the community.”
The defendant testified that he, the victim, and Chris Zamisz moved into the house
together but that Chris returned to Dallas in November 2001 due to complications from
earlier foot surgery. He stated that he and the victim were close friends but did not have a
romantic relationship and that it was the victim’s suggestion that he use the last name Taylor
and identify himself as her nephew in order to avoid the appearance of impropriety in their
living arrangements. The defendant explained that he used the first name “Kawika” because
it was Hawaiian for “David.”
The defendant testified that the victim met Ed and Marge Carroll, a well-dressed
couple in their 70’s, at a store in Oak Ridge and developed a fast friendship with them, which
was why she agreed to go with them to Baltimore, Maryland, to see their physician after she
fell and injured her knee in January 2002. He said the victim left with the Carrolls sometime
around March 9, returned to Harriman on March 30, and then left with them again for Florida
to have double knee replacement surgery. He stated that the victim made plans to recuperate
from the surgery in the Bahamas while the defendant continued the restoration of her
Harriman home. The defendant testified that he kept a weekly summary of the repairs
performed on the home in the victim’s absence and paid the workers, with the victim’s
permission, out of the victim’s accounts. On May 10, 2002, he went to Texas to pick up
Chris Zamisz and the two of them returned to Harriman together on May 12.
The defendant testified that he had shown James Taylor his copies of discovery, which
included Dr. Jantz’s report, while they were together at the jail. He denied that he told Taylor
any of the things that Taylor related in his trial testimony. He testified that he never used the
victim’s account to make purchases on his own behalf and that he had only $500 or $600 at
the time of his arrest. He stated that Chris Zamisz sold the victim’s truck in Massachusetts
and gave him $300 or $400 of the proceeds. The defendant denied having anything to do
with the victim’s murder and expressed his hope that she was still alive.
On cross-examination, the defendant testified that the Carrolls told him that they
would be in touch and that he did not think to get their contact information from them. He
said he later found their cell phone number and in July 2002 provided it to the Harriman
Police Department. He stated that he did not recall having received any emails from the
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victim, although he acknowledged having said otherwise in his statement to the police. He
further acknowledged that he forged the victim’s name to her checks and used her ATM card
to withdraw cash from her accounts on multiple occasions. He insisted, however, that she
had given him her permission to do so. He conceded that he also forged her signature to the
title to her truck. However, he justified his actions by testifying that the victim had given the
truck to Chris Zamisz in October 2001. Finally, he testified that he and Chris Zamisz left
Harriman for Massachusetts because their lives had been threatened.
State’s Rebuttal Proof
Chief Heidle testified that the defendant never provided him with any phone number
for Ed and Marge Carroll.
Following deliberations, the jury convicted the defendant of the lesser-included
offense of second degree murder in count one of the indictment; the lesser-included offense
of facilitation of theft over $1000 in count two, which charged the defendant and Christopher
Zamisz with the theft of the victim’s truck; and of theft over $1000 in count four of the
indictment, which charged the defendant with the theft of funds from the victim’s bank
accounts.1 The theft conviction in count two, however, was later dismissed due to the lack
of proof as to the vehicle’s value. At the conclusion of the sentencing hearing, the trial court
applied the enhancement factor that the victim was particularly vulnerable due to age and
sentenced the defendant as a Range I, standard offender to concurrent sentences of twenty
years for the second degree murder conviction and three years for the theft conviction.
ANALYSIS
I. Sufficiency of the Evidence
As his first issue, the defendant challenges the sufficiency of the evidence in support
of his second degree murder conviction. He argues that the State failed to prove he had the
requisite mens rea for second degree murder and that the evidence, aside from the testimony
of James Taylor, was entirely circumstantial and insufficient to exclude every reasonable
hypothesis other than his guilt. The State argues that the evidence was sufficient for the jury
to find the defendant guilty of a knowing killing of the victim, and we agree.
1
The third count of the indictment charged Christopher Zamisz with accessory after the fact based
on his having helped the defendant avoid arrest, trial, conviction, or punishment for the victim’s homicide.
From the statements of counsel, we ascertain that Zamisz pled guilty for his role in the offenses.
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In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing 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 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);
State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,
604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the
weight and value to be given the evidence, and all factual issues are resolved by the trier of
fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict
by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
Second degree murder is defined as “[a] knowing killing of another.” Tenn. Code
Ann. § 39-13-210(a)(1) (2006). “A person acts knowingly with respect to a result of the
person’s conduct when the person is aware that the conduct is reasonably certain to cause the
result.” Id. § 39-11-302(b). Whether the defendant “knowingly” killed the victim is a
question of fact for the jury. See State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App.
2000). The jury may infer intent from the character of the offense and from all the facts and
circumstances surrounding the offense. See id. at 105 (citing State v. Holland, 860 S.W.2d
53, 59 (Tenn. Crim. App. 1993)).
Viewed in the light most favorable to the State, the evidence was sufficient to show
that the defendant committed a knowing killing of the victim. The State presented evidence
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to show that the defendant continued to live in the victim’s home after her disappearance,
treated her truck and bank accounts as his own, repeatedly lied about her whereabouts, and
concocted various tales to account for his presence in the home. The State presented further
evidence to show that the elderly victim was killed by blunt force trauma to her head and that
her body was moved at least once after it had begun to decompose. This latter evidence was
consistent with the account of the crime that the defendant related to James Taylor, who
testified that the defendant told him he lured the victim into the woods, hit her in the head,
hid her dead body in one location for a period of time, and then moved it again after it had
decomposed.
The defendant contends that the jury’s having convicted him of second degree murder
shows that it “totally discredited” the testimony of Taylor because the account he related of
the crime was “the prototype of a first degree premeditated murder.” The defendant further
contends that without the testimony of Taylor, the evidence against him is entirely
circumstantial and insufficient to eliminate every other reasonable theory except his guilt.
We respectfully disagree. The jury, in its determination of credibility, could have chosen to
believe all, none, or part of Taylor’s testimony. Thus, the jury could have believed that the
defendant confessed the killing to Taylor but have been doubtful about the particular details
provided in Taylor’s account. As such, the jury could have reasonably concluded that the
evidence, which included all of the defendant’s suspicious activities surrounding the victim’s
disappearance, was sufficient to prove that the defendant knowingly killed the victim, but
insufficient to prove beyond a reasonable doubt that the murder was premeditated. We
conclude, therefore, that the evidence is sufficient to sustain the defendant’s conviction for
second degree murder.
II. Identification of Remains
The defendant next contends that the trial court erred by allowing Dr. Jantz’s
testimony with respect to the method by which she identified the remains. Specifically, he
argues that the trial court should have disallowed her testimony on the basis that the sinus
cavity identification methodology she employed does not meet sufficient indicia of reliability
for admission under Tennessee law.
The admission of expert testimony is governed by Tennessee Rules of Evidence 702
and 703. Rule 702 provides that “[i]f scientific, technical, or other specialized knowledge
will substantially assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. Rule 703 provides
that expert testimony shall be disallowed “if the underlying facts or data indicate lack of
trustworthiness.” Tenn. R. Evid. 703.
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In McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 265 (Tenn. 1997), our
supreme court recited several nonexclusive factors that a court may consider in determining
the reliability of scientific testimony, including:
“(1) whether scientific evidence has been tested and the methodology with
which it has been tested; (2) whether the evidence has been subjected to peer
review or publication; (3) whether a potential rate of error is known; (4)
whether . . . the evidence is generally accepted in the scientific community;
and (5) whether the expert’s research in the field has been conducted
independent of litigation.”
Brown v. Crown Equipment Corp., 181 S.W.3d 268, 274 (Tenn. 2005) (quoting McDaniel,
955 S.W.2d at 265). The Brown court identified two other factors that a trial court may
consider in assessing the reliability of an expert’s methodology: (1) the expert’s
qualifications for testifying on the subject at issue, and (2) the connection between the
expert’s knowledge and the basis for the expert’s opinion. Id. (citations omitted).
“[T]he allowance of expert testimony, the qualifications of expert witnesses, and the
relevancy and competency of expert testimony are matters which rest within the sound
discretion of the trial court.” State v. Rhoden, 739 S.W.2d 6, 13 (Tenn. Crim. App. 1987)
(citing Murray v. State, 214 Tenn. 51, 377 S.W.2d 918, 920 (1964); Bryant v. State, 539
S.W.2d 816, 819 (Tenn. Crim. App. 1976); State v. Holcomb, 643 S.W.2d 336, 341 (Tenn.
Crim. App. 1982)). As such, we will not disturb the trial court’s ruling absent a clear
showing that it abused its discretion in admitting the testimony. Id.; State v. Stevens, 78
S.W.3d 817, 832 (Tenn. 2002).
Initially, we note that neither the transcript of the pretrial hearing at which the trial
court ruled in favor of admitting the evidence nor Dr. Jantz’s written report is included in the
record before this court. It is the defendant’s duty to prepare a fair, accurate, and complete
record on appeal, see Tenn. R. App. P. 24(b), and when necessary parts of the record are not
included, we must presume that the trial court’s ruling was correct. See State v. Oody, 823
S.W.2d 554, 559 (Tenn. Crim. App. 1991). We, therefore, agree with the State that the
defendant has waived the issue by his failure to provide an adequate record for our review.
Even if not waived, the defendant would not be entitled to relief on the basis of this
issue. Dr. Jantz testified that she held bachelor’s, master’s, and doctorate degrees in
biological anthropology, was the head of the Department of Forensic Anthropology at the
University of Tennessee, had been an instructor in forensic anthropology in the National
Forensic Academy since 2001, had been doing case work since the mid to late 1980’s, and
had worked extensively at the “Body Farm,” a premier research facility at the University of
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Tennessee that was nationally known. Thus, she was clearly qualified as an expert in
forensic anthropology. In addition, apart from her testimony about the identification of the
victim by her frontal sinuses, a topic on which she said extensive research had been
conducted and numerous scientific papers written, she identified the bones as those of a
Caucasian woman at least sixty years of age who had nasal fractures that were consistent
with fractures the victim had sustained. That evidence, combined with evidence that the
remains were located in the same county from which the victim disappeared and were of an
age consistent with the victim’s last sighting, was sufficient for a jury to reasonably conclude
that the remains were those of the victim.
III. Excessive Sentence
Lastly, the defendant contends that the trial court imposed an excessive sentence for
his second degree murder conviction. In support, he cites his lack of a criminal history,
model behavior at the unsecured Christian residential center, advanced age, and deteriorating
health.
When an accused challenges the length and manner of service of a sentence, it is the
duty of this court to conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code
Ann. § 40-35-401(d) (2006). This presumption is “conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant facts and
circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does
not apply to the legal conclusions reached by the trial court in sentencing the accused or to
the determinations made by the trial court which are predicated upon uncontroverted facts.
State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d
922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim.
App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).
In conducting a de novo review of a sentence, this court must consider (a) any
evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the
principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e)
the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g)
any statistical information provided by the administrative office of the courts as to Tennessee
sentencing practices for similar offenses, (h) any statements made by the accused in his own
behalf, and (i) the accused’s potential or lack of potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001). The party challenging the sentence imposed by the trial court has the
burden of establishing that the sentence is erroneous. Tenn .Code Ann. § 40-35-401 (2006),
Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169.
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In imposing a specific sentence within a range, a trial court “shall consider, but is not
bound by,” certain advisory sentencing guidelines, including that the “minimum sentence
within the range of punishment is the sentence that should be imposed” and that “[t]he
sentence length within the range should be adjusted, as appropriate, by the presence or
absence of mitigating and enhancement factors[.]” Tenn. Code Ann. § 40-35-210(c)(1), (2).
The weighing of the various mitigating and enhancement factors is “left to the trial court’s
sound discretion.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008).
The trial court enhanced the defendant’s second degree murder sentence from fifteen
years to twenty years based on its finding that the victim was particularly vulnerable due to
age and possible physical infirmity. The trial court’s ruling states in pertinent part: “[T]he
Court feels that the age of the victim does have a play into it. And maybe her physical health,
maybe not, but her age at least and the Court does not feel that this would be a minimum
sentence range.”
Whether a victim is “particularly vulnerable” for the purposes of the enhancement
factor is “a factual issue to be resolved by the trier of fact on a case by case basis.” State v.
Poole, 945 S.W.2d 93, 96 (Tenn. 1997). Application of the factor is appropriate in cases
where the victim’s vulnerability “had some bearing on, or some logical connection to, ‘an
inability to resist the crime, summon help, or testify at a later date.’” State v. Lewis, 44
S.W.3d 501, 505 (Tenn. 2001) (quoting Poole, 945 S.W.2d at 96). “The State is required to
proffer evidence in addition to the victim’s age to establish particular vulnerability; however,
that evidence ‘need not be extensive.’” Id. (quoting Poole, 945 S.W.2d at 97).
At the time the murder presumably took place, in early 2002, the victim, who by all
accounts qualified as obese, was seventy-six years old while the defendant was
approximately fifty-nine. In this matter, as we have set out, the trial court found that the
victim was particularly vulnerable due to her “age at least.” However, in Poole, our supreme
court determined that the trial court had erred in concluding that a seventy-year-old who lived
alone was particularly vulnerable simply because of her age and living status:
Without question, this 70-year-old victim living alone was vulnerable to the
type of offense committed by the defendant. We do not hold nor do we believe
otherwise. Yet given the inherent ambiguity in attempting to determine
vulnerability solely from one’s age, we are unwilling to engage in potentially
unfounded presumptions. A person’s age alone may have little or no bearing
on size, strength or vitality. Thus, unless the State produces evidence of
physical or mental limitations at the time of the offense, along with proof of
the victim’s age, it cannot be presumed that the victim was particularly
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vulnerable based solely on her age.
Poole, 945 S.W.2d at 97-98.
We note that John Bales, a witness for the State, testified that the victim, in spite of
her age and size, was able to get around well, and he related that he once had seen her on an
extension ladder, painting a gable under the roof. Thus, based upon the holding in Poole, we
are compelled to conclude that, although the victim was elderly and very obese, these facts
alone did not establish that she was “particularly vulnerable,” for sentence enhancement
purposes.
Accordingly, we conclude that the trial court erred in enhancing the defendant’s
sentence to twenty years and modify the sentence to fifteen years.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court but modify the defendant’s sentence to fifteen years.
_________________________________
ALAN E. GLENN, JUDGE
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