State of Tennessee v. Benjamin Foust

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 28, 2015 Session

STATE OF TENNESSEE v. BENJAMIN FOUST

Appeal from the Criminal Court for Knox County

No. 98837B Mary Beth Leibowitz, Judge

No. E2014-00277-CCA-R3-CD – Filed September 9, 2015

The Defendant, Benjamin Foust, was indicted and, following a jury trial, convicted of ten

counts of felony first degree murder, two counts of premeditated first degree murder, four

counts of especially aggravated robbery, three counts of aggravated arson, and two counts

of unlawful possession of a firearm. See Tenn. Code Ann. §§ 39-13-202, -13-403, -14-

302, -17-1307(b). The trial court sentenced the Defendant to a total effective sentence of

two consecutive life sentences plus 105 years. In this appeal as of right, the Defendant

contends (1) that the trial court erred by allowing the State to admit, as substantive

evidence, the prior statement of a co-defendant in violation of Tennessee Rules of

Evidence 613 and 803(26); (2) that the trial court erred by failing to merge all of the

Defendant‘s convictions for aggravated arson; (3) that the evidence was insufficient to

sustain the Defendant‘s convictions; (4) that the trial court erred by not allowing the

Defendant to stipulate that he had been convicted of prior felonies without disclosing that

the convictions were for crimes of force and violence; (5) that the trial court erred by

admitting an autopsy photograph of the charred body of one of the victims; (6) that the

State improperly vouched for the credibility of a co-defendant who testified against the

Defendant at trial; (7) that the trial court erred in instructing the jury regarding the

inferences that could be drawn from the possession of recently stolen property; and (8)

that the trial court erred by imposing partial consecutive sentences.1 Following our

review, we conclude that the trial court erred by allowing the State to introduce, as

substantive evidence, the prior statement of a co-defendant in its entirety, and that this

error was not harmless. Accordingly, we reverse the judgments of the trial court and

remand this case for a new trial. We also conclude that the evidence was insufficient to

sustain one of the Defendant‘s convictions for aggravated arson. With respect to that

conviction, we reverse the judgment of the trial court and dismiss the charge. We will

address the remainder of the Defendant‘s arguments so as not to pretermit his remaining

1

For the purpose of clarity, we have renumbered and reordered the issues as stated by the Defendant in

his appellate briefs.

issues. See State v. Parris, 236 S.W.3d 173, 189 (Tenn. Crim. App. 2007) (following a

similar procedure).

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed;

Case Remanded in Part and Dismissed in Part

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Bruce E. Poston, Knoxville, Tennessee (at trial and on appeal); and Wesley D. Stone,

Knoxville, Tennessee (on appeal), for the appellant, Benjamin Foust.2

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant

Attorney General; Randall Eugene Nichols, District Attorney General; and Ta Kisha

Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND3

I. Indictment

In 2012, the Defendant and his co-defendants, Ashlie Tanner and Teddie Jones,

were indicted for numerous offenses arising from the August 16, 2011 murders of the

victims, Dena and Eric Marsh. With respect to the offenses committed against Ms.

Marsh, the indictment alleged as follows: Count 1, felony first degree murder ―during the

attempt to perpetrate‖ a theft; Count 2, felony first degree murder ―during the attempt to

perpetrate‖ a robbery; Count 3, felony first degree murder ―during the perpetration of‖ a

theft; Count 4, felony first degree murder ―during the perpetration of‖ a robbery; Count 5,

felony first degree murder ―during the perpetration of‖ an arson; Count 6, premeditated

first degree murder; Counts 13 and 14, especially aggravated robbery, and Count 17,

aggravated arson, listing Ms. Marsh as having suffered a serious bodily injury as a result

of the arson.

2

During the pendency of this appeal, Mr. Poston was killed in a single vehicle accident. Thereafter, Mr.

Stone was appointed as counsel of record for the Defendant and allowed to file a supplemental appellate

brief.

3

This section will discuss only the factual background regarding the Defendant‘s convictions. The

factual background of the Defendant‘s procedural issues will be discussed in other portions of this

opinion.

-2-

With respect to the offenses committed against Mr. Marsh, the indictment alleged

as follows: Count 7, felony first degree murder ―during the attempt to perpetrate‖ a theft;

Count 8, felony first degree murder ―during the perpetration of‖ a theft; Count 9, felony

first degree murder ―during the attempt to perpetrate‖ a robbery; Count 10, felony first

degree murder ―during the perpetration of‖ a robbery; Count 11, felony first degree

murder ―during the perpetration of‖ an arson; Count 12, premeditated first degree

murder; Counts 15 and 16, especially aggravated robbery; Count 18, aggravated arson,

listing Mr. Marsh as having suffered a serious bodily injury as a result of the arson; and

Count 19, aggravated arson of ―other property‖ belonging to Mr. Marsh ―at a time when

one or more persons were present therein said other property.‖

The Defendant alone was charged with two counts of unlawful possession of a

firearm. In Count 20, the Defendant was charged with possession of a firearm ―having

been convicted of a felony involving the use of violence,‖ and in Count 21, he was

charged with possession of a firearm ―having been convicted of a felony involving the

use of force.‖

II. State’s Proof at Trial

Robert Cowles testified that he was the minister of the church the victims attended

and that on August 16, 2011, he went to their house to check on Mr. Marsh. Mr. Cowles

explained that Mr. Marsh ―had recently had surgery‖ on his shoulder and left arm and

that he ―wasn‘t at church the previous Sunday.‖ Mr. Cowles estimated that he arrived at

the victims‘ house around 7:30 or 7:45 that night. Mr. Cowles testified that he visited

with the victims in their living room and recalled that Mr. Marsh‘s arm was still in a sling

from his surgery. Mr. Cowles noticed that there were ―several prescription bottles‖ on

the table beside Mr. Marsh‘s chair and assumed they were ―pain medicines‖ that Mr.

Marsh was taking because of the surgery. At some point, Ms. Marsh excused herself to

go lie down in ―the back bedroom.‖ Mr. Cowles testified that he left the victims‘ home at

approximately 8:15 that night.

James Morsch testified that he was a former firefighter and that on the evening of

August 16, 2011, he was driving in the victims‘ neighborhood when he smelled smoke.

Mr. Morsch stated that he turned his car around ―to investigate‖ the smell and saw

―considerable smoke and flames‖ coming from a house in the neighborhood. Mr. Morsch

drove to the house and saw ―flames shooting out of . . . a back window about [twenty-

five] to [thirty] feet in the air.‖ Mr. Morsch testified that as bystanders called 911,4 he

started ―beating on the door and screaming‖ to determine if anyone was inside the house.

Another bystander kicked the door open, and Mr. Morsch crawled into the entry of the

4

The Knox County Emergency Communications District received the first 911 call about the fire at 9:10

p.m.

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house. Mr. Morsch testified that ―it was pitch black‖ in the house and ―extremely hot.‖

Mr. Morsch ―stretched out as far as [he] could and tried to reach around and see if [he]

could feel anyone.‖ Mr. Morsch did not feel anyone and was quickly forced out of the

house due to the heat and smoke.

Most of the evidence regarding the police investigation of the murders was

introduced at trial through the testimony of Danielle Wieberg, an evidence technician for

the Knoxville Police Department (KPD). Ms. Wieberg testified that when she arrived on

the night of August 16, 2011, the victims‘ house was still burning. Shortly after she

arrived, the firefighters pulled Mr. Marsh‘s body from the house. Ms. Wieberg was not

able to enter the house until approximately 10:15 that night. Ms. Wieberg recalled that

she entered the house through the front door and into the living room. Ms. Wieberg

described the house as being significantly burned with soot, charring, and smoke damage

―throughout the entire home,‖ and that ―part of the roof was missing‖ leaving everything

―covered in insulation.‖

Ms. Wieberg testified that Mr. Marsh‘s body was found beside ―a large couch‖

in the living room. Near where Mr. Marsh‘s body was found, Ms. Wieberg found a pair

of shorts with ―a large quantity of . . . blood on them.‖ Ms. Wieberg also found ―a blue

comforter that had a large quantity of what appeared to be blood on it‖ in the living room.

Ms. Wieberg testified that in the living room there was a chair with ―a long sleeved t-shirt

[tied] around it.‖ Ms. Wieberg found ―a large quantity of what appeared to be blood‖ on

the shirt and blood stains on the chair. There were also ―several areas‖ of what appeared

to be blood spatter on the wall directly across from the front door and ―several, small

dark stains‖ on the entertainment center in the living room.

Ms. Wieberg testified that the firefighters found a ―white [container] of what

looked like lighter fluid‖ in the dining room. Later, Ms. Wieberg found what she

believed to be blood spatter on a ―transition wall between the living room and the

kitchen‖ and on a ―piece of board that was . . . leaned up against‖ that wall. Ms. Wieberg

also found ―some small areas of bloodstain‖ on one of the kitchen cabinets. Ms. Weiberg

testified that on the floor ―in front of the cabinet near the kitchen back door,‖ there was a

purse with a ―roofing hatchet . . . lying across the center‖ of it. Ms. Weiberg described

the roofing hatchet as ―a large hammer like object that had a mallet head on one end and .

. . a hatchet end on the other half.‖ Ms. Wieberg testified that the hatchet had what

appeared to be blood on the mallet head.

Ms. Marsh‘s body was found in the back bedroom of the house. Ms. Wieberg

testified that a small hammer was found ―nearby‖ the body. In the back bedroom, a

―piece of fabric‖ was found ―saturated‖ with what Ms. Wieberg believed was blood. In a

back corner of the bedroom, ―a partially burned pillowcase that had several pill bottles in

it‖ was found. In the same corner, ―a small red purse that had some other pill bottles in it

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and some jewelry‖ was also found. Ms. Wieberg testified that ―a severely burned

shotgun‖ was found ―between what remained of the mattresses.‖

Ms. Wieberg testified that the day after the fire, arson investigators brought ―an

arson dog‖ to the house to attempt to detect if an accelerant was used. Ms. Wieberg

photographed the locations where the dog ―alerted,‖ and the arson investigators took

samples of the flooring. Ms. Wieberg also testified that two days after the fire, she

entered the downstairs garage of the house. Inside the garage, Ms. Wieberg found a large

area of blood on the floor by a table saw. There was also blood on a tool case by the saw,

in addition to drops of blood in other areas of the garage. Ms. Wieberg was allowed to

testify as an expert in ―bloodstain pattern analysis‖ and opined that Mr. Marsh was

attacked and injured downstairs in the garage, managed to make his way upstairs, and

was attacked a second time upstairs.

During the investigation, Mr. Jones, who was Mr. Marsh‘s stepson from another

marriage, along with Ms. Tanner and the Defendant were identified as suspects. On

August 18, 2011, the Defendant and Ms. Tanner were arrested in the parking lot of a

grocery store. Ms. Tanner was driving the Defendant‘s Ford Explorer, and the Defendant

was in the passenger seat. The vehicle was green except for the driver‘s side door, which

was red, and had an Anderson County license plate. Also, the panel above the front left

wheel well had been completely removed from the vehicle. In the back of the vehicle,

police found a Remington twelve gauge shotgun wrapped in ―a comforter or a

bedspread.‖ When he was arrested, the Defendant had a cut on one of his fingers. The

police searched the house where the Defendant lived and found two jewelry boxes and

several pieces of jewelry in some garbage bags in the utility room of the house. A first

aid kit was also found at the house.

Police also searched the apartment of Mr. Jones. There they found a rock and a

sock with what appeared to be blood on them in the laundry room. In Mr. Jones‘s

bathroom, the shower and sink tested positive for the presence of blood. Police were able

to identify the dumpster used by the apartment complex and located the trash from the

apartment complex at ―a dump station.‖ There the police found bottles of bleach, two

pairs of shoes, a pair of jeans, and two shirts. Police found what they believed to be

blood on a green and yellow pair of shoes, the jeans, and both of the shirts. The arson

dog also ―alerted‖ for the presence of an accelerant on one of the shirts, the jeans, and the

green and yellow shoes.

Mr. Marsh‘s stepfather, Philip Lanteri, testified that Mr. Jones ―would steal things

out of [Mr. Marsh‘s] house.‖ According to Mr. Lanteri, Mr. Jones had stolen ―pain pills‖

from Mr. Marsh in the past and would take ―basically anything [else] of value‖ he could

find. Mr. Marsh bought a safe and a ―safety deposit box‖ because of the thefts. Mr.

Lanteri testified that Mr. Marsh kept the safe in the closet of the back bedroom ―bolted to

-5-

the floor.‖ Mr. Lanteri also testified that Mr. Marsh kept his ―pain medication in the

safety deposit box.‖ Mr. Lanteri identified the shotgun found in the back of the

Defendant‘s vehicle as one he had given Mr. Marsh as collateral for a loan. Ms. Marsh‘s

niece and daughter identified the jewelry boxes and several pieces of jewelry found at the

house where the Defendant lived as belonging to Ms. Marsh.

Timothy Schade, a latent print examiner with the KPD, testified that he recovered

fingerprints of the Defendant‘s left ring finger, left middle finger, and right thumb from

the shotgun found in the Defendant‘s vehicle. Laura Hodge, a forensic scientist with the

Tennessee Bureau of Investigation (TBI), testified as an expert ―in the field of

microanalysis.‖ Ms. Hodge testified that one of the yellow and green shoes found in Mr.

Jones‘s trash and the white container found at Mr. Marsh‘s house tested positive for an

accelerant. Samples taken from the back door and hallway of Mr. Marsh‘s house tested

positive for a different kind of accelerant. Ms. Hodge opined that ―at least two types of

ignitable fluids [were] used in this case.‖ Other forensic analysis conducted by the TBI

revealed the presence of Mr. Marsh‘s blood on the roofing hatchet found at the house;

blood on the jeans recovered from Mr. Jones‘s trash and a combination of Mr. Jones and

Mr. Marsh‘s DNA on the jeans; and Mr. Jones‘s DNA on the green and yellow shoes, but

no blood.

Doctor Christopher Lochmuller, an expert in forensic pathology with the Knox

County Medical Examiner‘s Office, testified that he performed autopsies on the bodies of

Mr. and Ms. Marsh. According to Dr. Lochmuller, Mr. Marsh was ―beaten mainly

around the head area.‖ There were twelve lacerations to Mr. Marsh‘s scalp. Dr.

Lochmuller testified that the force of the blows to Mr. Marsh‘s head were so great that it

caused ―bleeding around the brain particularly on the left side‖ and five bruises on his

brain. Mr. Marsh also suffered two depressed skull fractures, which Dr. Lochmuller

explained meant that ―whatever struck the skull actually had enough force to kind of push

the skull inward a little bit rather than just . . . fracturing it.‖ Mr. Marsh also had bruises

on the back of his right hand and forearm, which Dr. Lochmuller opined were ―defensive

wounds.‖ Dr. Lochmuller testified that Mr. Marsh had soot in his nostrils and lungs as

well as ―a fairly high percentage of carbon monoxide in his blood.‖ Dr. Lochmuller

opined that Mr. Marsh was alive at the time the fire was started and that the cause of his

death was a combination of ―multiple blunt force injuries and inhalation of products of

combustion.‖

Dr. Lochmuller testified that Ms. Marsh‘s body was over ninety-five percent

covered in third degree burns and ―charring injuries.‖ According to Dr. Lochmuller, the

only area of Ms. Marsh‘s body which was not burned was the left side and back of her

head. There were three lacerations on the left side of her head and ―a large laceration‖ on

the back of her head. Dr. Lochmuller explained that the lacerations ―bled enough to kind

-6-

of create a pool of blood‖ that ―protected that area of skin‖ from the flames. Dr.

Lochmuller testified that Ms. Marsh suffered a depressed skull fracture on the left side of

her head and a skull fracture on the back of her head. During the autopsy, Dr.

Lochmuller found evidence that Ms. Marsh had inhaled soot and that there was carbon

monoxide in her blood. Dr. Lochmuller opined that Ms. Marsh was alive at the time the

fire was started and that the cause of her death was a combination of blunt force injuries

to the head and ―inhalation of products of combustion.‖ Dr. Lochmuller also opined that

the injuries to Mr. and Ms. Marsh could have been caused by the mallet head of the

roofing hatchet or the small hammer found near Ms. Marsh‘s body.

Co-defendant Ashlie Tanner testified that she received a plea offer from the State

to plead guilty to facilitation of felony first degree murder and receive a sentence of

twenty-five years with a release eligibility of thirty percent in exchange for her ―truthful

testimony‖ at trial. Ms. Tanner further testified that if she did not testify truthfully, she

would not ―get the deal.‖ The Defendant was Ms. Tanner‘s boyfriend at the time of the

murders, and she claimed at trial that she did not want to testify against the Defendant

because she still loved him. In August 2011, Ms. Tanner lived with the Defendant at the

Defendant‘s mother‘s house.

Ms. Tanner testified that she had known the other co-defendant, Mr. Jones, longer

than the Defendant, that she and Mr. Jones would get ―high together,‖ and that on one

occasion they ―had intimate relations.‖ According to Ms. Tanner, she regularly met with

Mr. Jones to ―shoot up‖ oxycodone and cocaine while the Defendant was at ―school or

work.‖ Ms. Tanner claimed that the Defendant also abused oxycodone but that she hid

what she did with Mr. Jones from the Defendant because ―[p]eople look at it a little

different when you‘re shooting up, and [she] knew that [the Defendant] would leave [her]

if he caught [her] shooting up pills.‖ Ms. Tanner denied having a sexual relationship

with Mr. Jones at the time of the murders.

Ms. Tanner claimed that on the afternoon of August 16, 2011, Mr. Jones‘s

girlfriend dropped him off at the Defendant‘s mother‘s house. According to Ms. Tanner,

Mr. Jones and the Defendant spent the afternoon ―[w]orking on [the Defendant‘s] mom‘s

car.‖ Mr. Jones and the Defendant ―were talking about‖ going to Mr. Marsh‘s house ―to

get some tools‖ to work on the car. So, Ms. Tanner, the Defendant, and Mr. Jones got in

the Defendant‘s vehicle to drive to the victims‘ house. Ms. Tanner testified that the

Defendant drove, she sat in the front passenger seat, and Mr. Jones sat in the back seat.

Ms. Tanner did not recall the Defendant drinking while he was working on the car, but

she claimed that he had a beer as he drove to the victims‘ house. On the way there, they

stopped at a gas station where the Defendant got out to buy a pack of cigarettes. Ms.

Tanner claimed that while the Defendant was inside the gas station, Mr. Jones ―changed

the tags on the car‖ to the ―temporary tags [from] his car.‖

-7-

Ms. Tanner testified that once the Defendant got back to the vehicle, he drove

them to the victims‘ house. Ms. Tanner claimed that no one spoke on the way to the

victims‘ house, except for Mr. Jones saying that ―he was gonna get pills . . . [b]ut he

didn‘t say from where.‖ According to Ms. Tanner, they parked in the driveway, and Mr.

Jones went in the front door of the house while she and the Defendant stayed in the

vehicle. Mr. Jones was inside for ten or fifteen minutes before he ―waved [them] to come

inside.‖ Mr. Jones led them in a ―side door‖ to ―the living room area by the dining

room.‖ Ms. Tanner claimed that Mr. Jones entered the house first followed by the

Defendant. Ms. Tanner further claimed that she entered the house last and that as she

entered, the Defendant told her ―not to step in any blood.‖

Ms. Tanner testified that she did not see any blood when she entered the house,

but she assumed that they ―were gonna commit a robbery at that point‖ because they

were ―all junkies.‖ Ms. Tanner claimed that once she entered the house, the Defendant

and Mr. Jones went ―towards the kitchen,‖ and she walked ―down the hall to find a

bathroom.‖ Ms. Tanner explained that she ―had pills . . . that nobody knew [she] had‖

and that she wanted to ―shoot up‖ in secret because she ―didn‘t want [the Defendant] to

know.‖ As she was walking down the hallway, Ms. Tanner heard ―gurgling‖ coming

from the back bedroom.

Ms. Tanner testified that she walked into the bedroom and saw Ms. Marsh lying

―on the floor by the bed‖ with ―a head injury.‖ As Ms. Tanner walked toward Ms.

Marsh, Mr. Jones ―came in the room and he hit her again.‖ Mr. Jones then gave Ms.

Tanner a pillowcase and told her ―to put everything‖ from an open drawer in the bedroom

inside the pillowcase. Ms. Tanner testified that the Defendant walked into the bedroom

and stood behind Mr. Jones as Mr. Jones was giving her the pillowcase. According to

Ms. Tanner, she started filling the pillowcase with ―papers and pill bottles‖ from the

drawer while the Defendant and Mr. Jones left the room. Ms. Tanner testified that she sat

―the pillowcase on the bed‖ and accidently left it there because she ―was scared and . . .

just wanted to get out of the house.‖

Ms. Tanner started back down the hallway when Mr. Marsh ―walked around the

corner from like the kitchen area.‖ Ms. Tanner testified that she ―squatted down‖

because she thought Mr. Marsh was coming towards her. At that point, Mr. Jones ―came

around the corner and . . . hit [Mr. Marsh] again.‖ Ms. Tanner claimed that she turned

around while Mr. Jones was attacking Mr. Marsh. When she turned back around, Mr.

Jones was covering Mr. Marsh ―up with a blanket,‖ and the Defendant was standing next

to Mr. Jones ―by the door or coming like he was coming in the door.‖ Ms. Tanner saw

blood on Mr. Marsh‘s head and on the floor. Ms. Tanner testified that Mr. Marsh called

Mr. Jones by his nickname and kept asking, ―[W]hy, Peanut[?]‖

-8-

Ms. Tanner testified that after Mr. Jones attacked Mr. Marsh, she ―went out the

door and got in the car‖ while Mr. Jones and the Defendant went back into the kitchen.

Ms. Tanner claimed that she was in the car when the fire was started and did not know

about the fire until after she was arrested. According to Ms. Tanner, the Defendant came

―out with the safe and [got] in the car.‖ Ms. Tanner testified that Mr. Jones came out

next and that when he got to the car, he told her ―to drive through the yard.‖ According

to Ms. Tanner, she drove them all back to Mr. Jones‘s apartment. Ms. Tanner claimed

that on the way back to Mr. Jones‘s apartment, he said that he had left a purse and a

hammer at the victims‘ house. Ms. Tanner also claimed that Mr. Jones ―yelled at [her]

for leaving the pillowcase‖ as she drove them back to his apartment. Ms. Tanner testified

that when they got to Mr. Jones‘s apartment, the Defendant and Mr. Jones carried the safe

inside the apartment.

Ms. Tanner testified that once they were inside the apartment, they ―crushed up

some pills and snorted the pills.‖ Ms. Tanner did not know where Mr. Jones had gotten

the oxycodone that they used that night, but she did not believe that he had it before they

went to the victims‘ house. Ms. Tanner testified that Mr. Jones and the Defendant

opened the safe with a crowbar and that the Defendant cut his finger while they were

opening it. According to Ms. Tanner, ―there wasn‘t anything really in‖ the safe once they

opened it. Mr. Jones told the Defendant and Ms. Tanner to dispose of the safe. Ms.

Tanner testified that she and the Defendant drove back to his mother‘s house and put the

safe on her back porch. Ms. Tanner claimed that the Defendant also put a shotgun

―underneath the Winnebago in the backyard‖ of his mother‘s house and that she had not

seen the shotgun before that. According to Ms. Tanner, the Defendant told her ―not to be

alone with [Mr. Jones] anymore‖ after that night.

Ms. Tanner and the Defendant then went to a nearby grocery store ―to get stuff to

bandage [his] finger, bleach, . . . and some things for his mom.‖ Ms. Tanner was shown

surveillance video from the grocery store and identified herself and the Defendant in the

video. The video showed the couple at the store from 10:00 to 10:36 p.m. Ms. Tanner

testified that when they went to the grocery store, she and the Defendant were wearing

the same clothes they had worn during the murders. Ms. Tanner testified that when they

got back to the Defendant‘s mother‘s house, they cleaned the safe and the safety deposit

box taken from the victims‘ home with bleach. Ms. Tanner claimed that she and the

Defendant then took the safe and safety deposit box to a dumpster and went back to his

mother‘s house. According to Ms. Tanner, she then cleaned and bandaged the

Defendant‘s finger, and they ―did more pills.‖

Ms. Tanner testified that she put the bottle of bleach they used to clean the safe

and safety deposit box in a garbage bag and took it outside. According to Ms. Tanner, in

addition to the shotgun, the safe, and the safety deposit box, she and the Defendant

-9-

brought jewelry taken from the victims‘ home to the Defendant‘s mother‘s house. Ms.

Tanner claimed that she did not know who took the jewelry from the victims‘ house but

admitted that she carried it from Mr. Jones‘s apartment to the Defendant‘s mother‘s

house. Ms. Tanner testified that Mr. Jones was going to come by the next day and pick

up the jewelry to pawn it and that she assumed he wanted them to hold it because he did

not want his girlfriend to find the jewelry at his apartment. Ms. Tanner claimed that she

was ―not sure‖ why the police found the jewelry and jewelry boxes in a trash bag with the

bleach bottles when they searched the house.

Ms. Tanner testified that the day after the murders, she and the Defendant went to

sell the shotgun and buy some marijuana from a friend. According to Ms. Tanner, the

Defendant took the shotgun from under the Winnebago, wrapped it in a blanket, and put

it in the back of his Ford Explorer. However, Ms. Tanner and the Defendant were

arrested shortly after they left to sell the shotgun. Ms. Tanner initially told the police that

she and the Defendant ―were at home watching a movie, that [Mr. Jones] had come over,

and then [Mr. Jones] went back to his house.‖ Ms. Tanner testified that she lied to the

police because she did not want herself or the Defendant ―in trouble,‖ but she confessed

after she found out that the police had already spoken to Mr. Jones.

On cross-examination, Ms. Tanner admitted that she would be eligible for parole

after serving less than eight years in prison due to her plea agreement with the State. Ms.

Tanner also admitted that Mr. Jones was the only person she saw with the hammer during

the murders and that she did not ―see anything in [the Defendant‘s] hands‖ while they

were in the victims‘ house. Ms. Tanner testified that she did not know why Mr. Jones

would switch out the tags on the Defendant‘s Explorer when it was green with a red

driver‘s side door, which Ms. Tanner testified did not work, and was missing a significant

portion of the paneling in the front. Ms. Tanner further admitted that the vehicle did not

have a temporary tag on it when she and the Defendant were arrested.

Also on cross-examination, Ms. Tanner testified that when she entered the

victims‘ house, she went down the hallway because she ―just assumed‖ there would be a

bathroom that way even though she had never been in the house. Ms. Tanner claimed

that she did not know how jewelry got in the pillowcase she left in the back bedroom and

insisted that she only put papers and pill bottles in it. Ms. Tanner admitted on cross-

examination that, after her arrest, she told the Defendant, her mother, and her aunt that

she was pregnant. Ms. Tanner claimed that she actually thought she was pregnant at the

time of her arrest but admitted that she lied to the Defendant, her mother, and her aunt for

several months, eventually lying to them about having a miscarriage. When asked why

the jury should believe her after lying to her mother and her aunt about a pregnancy and a

miscarriage, Ms. Tanner responded that she ―was sworn to tell the truth‖ at trial, and she

―was not sworn to tell [her] mother and [her] aunt the truth.‖

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On redirect examination, Ms. Tanner testified that her testimony was the truth and

that ―if [she] got caught in a lie‖ she would lose her plea deal. Ms. Tanner also claimed

that the Defendant asked her to ―take‖ the charges regarding the shotgun found in his

vehicle. During redirect examination, the State played a phone call Ms. Tanner made

from jail to her aunt shortly after her arrest. In the phone call, Ms. Tanner told her aunt

that Mr. Jones and the Defendant yelled at her and told her to go back to the car because

she screamed when she saw Mr. Marsh and started crying. Ms. Tanner stated that she

went back to the Explorer and started the ignition and that the Defendant came back first

followed by Mr. Jones. Ms. Tanner further stated during the jail call that Mr. Jones and

the Defendant yelled at her for forgetting the pillowcase and that Mr. Jones was mad

because he left the hammer inside the house.

III. Defendant’s Proof

Brent Cox testified that he was a Knoxville resident and that he remembered

August 16, 2011, because he and the Defendant ―had a lot of fun that day, and that was

the last time that [they] got to hang out together.‖ Mr. Cox recalled that he went to the

Defendant‘s mother‘s house around 4:00 p.m. that day and that they worked on the

Defendant‘s mother‘s car until around 7:30 or 8:00 p.m. Mr. Cox testified that he did not

see Mr. Jones or Ms. Tanner at all that afternoon and that Ms. Tanner ―was gone in the

[Defendant‘s] Explorer.‖

Mr. Cox testified that he and the Defendant ―were drinking [and] having a good

time‖ that afternoon. Mr. Cox recalled that they had ―[e]xcessive amounts‖ of alcohol

that day, estimating that they drank a case of beer along with some liquor. Mr. Cox

testified that when he left, the Defendant ―was passed out‖ and that he ―had to help [the

Defendant] in the house [because] he couldn‘t stand up, he couldn‘t walk.‖ Mr. Cox

further testified that Ms. Tanner had a reputation in the community ―for being a liar.‖

On cross-examination, Mr. Cox admitted that he had only known the Defendant

since 2009, but he claimed that during the time he knew the Defendant, he saw the

Defendant once a week. Mr. Cox also admitted that he drove home drunk from the

Defendant‘s mother‘s house on August 16, 2011. Mr. Cox further admitted that he never

told the police about what he had testified to but claimed that he had contacted the office

of the Defendant‘s attorney and had spoken to the attorney‘s investigator about it.

Co-defendant Teddie Jones testified that he and Ms. Tanner were seeing each

other three or four times a week and taking pills ―[p]retty much any way that you could

do a pill . . . eating them, snorting them, shooting them. That was the extent [of their]

relationship.‖ Mr. Jones claimed that the Defendant was jealous of his relationship with

Ms. Tanner, but he denied ever having ―a physical relationship‖ with her. According to

-11-

Mr. Jones, the Defendant knew Ms. Tanner was shooting up and ―didn‘t approve of it.‖

So, Mr. Jones and Ms. Tanner would meet secretly.

Mr. Jones testified that on the afternoon of August 16, 2011, he was alone at his

apartment. Mr. Jones denied going over to the Defendant‘s mother‘s house to work on a

car. According to Mr. Jones, he called Ms. Tanner for a ride that evening so they could

―go to get pills.‖ Mr. Jones testified that when Ms. Tanner picked him up at his

apartment, he was surprised to see the Defendant in the Ford Explorer. Mr. Jones

recalled that Ms. Tanner was driving and that the Defendant ―was extremely drunk.‖ Mr.

Jones denied talking to the Defendant ―at all about where [they] were going or anything

that day.‖

Mr. Jones testified that he told Ms. Tanner that they ―were gonna go buy some

pills,‖ and there was never any discussion about getting tools from Mr. Marsh.

According to Mr. Jones, he got the roofing hatchet from a neighbor and brought it with

him to the victims‘ house. Mr. Jones claimed that once they got to the victims‘ house, the

Defendant never got out of the vehicle, went inside the house, or carried anything out of

the house. According to Mr. Jones, only he and Ms. Tanner went inside the house. Mr.

Jones testified that he could not recall who carried the shotgun out of the house, but he

claimed that Ms. Tanner carried out the jewelry boxes.

Mr. Jones testified that Ms. Tanner drove them back to his apartment but denied

saying anything to Ms. Tanner about leaving the roofing hatchet in the victims‘ house.

Mr. Jones claimed that he tricked the Defendant into helping him open the safe by telling

the Defendant that it was his and that he had broken it. Mr. Jones testified that the

Defendant ―cut his hand‖ while trying to open the safe. According to Mr. Jones, after the

Defendant cut his hand he, ―[f]lipped out, went back outside and got in the car.‖ Mr.

Jones claimed that Ms. Tanner took the jewelry and the shotgun to ―take care of selling‖

them and that he and Ms. Tanner split the pills between themselves. Mr. Jones denied

that the Defendant took anything from his apartment that night.

Mr. Jones testified that he pled guilty to all of the charges he was facing without a

plea agreement. Mr. Jones claimed that he did not want to go to trial or testify in court

but that he was testifying on behalf of the Defendant because it ―was the right thing to

do.‖ Mr. Jones reiterated that the Defendant was not ―in the house‖ when he committed

the offenses and that the Defendant did not know ―what was gonna happen‖ that night.

Mr. Jones admitted on cross-examination that his testimony at trial was the first

time he had told anyone other than his lawyer ―this version‖ of what happened on August

16, 2011. Mr. Jones recalled speaking to the police on August 17, 2011, after having

been advised of and waiving his constitutional rights. Mr. Jones admitted that he told the

police that the Defendant was inside the victims‘ house instead of him. Mr. Jones did not

-12-

recall telling the police that the Defendant and Ms. Tanner ―wanted to do a robbery.‖ Mr.

Jones testified that he did recall telling the police that he gave Ms. Tanner and the

Defendant information about Mr. Marsh and that ―they went and did the robbery.‖

Mr. Jones also remembered telling the police that the Defendant and Ms. Tanner

came back to his apartment and told him about the robbery. Mr. Jones did not recall

giving the police ―a detailed description of what‖ the Defendant had told him. Mr. Jones

did recall telling the police about how the Defendant injured his hand. Mr. Jones did not

remember telling the police that he was afraid of the Defendant and his ―connections.‖

Mr. Jones testified at trial that he was not afraid of the Defendant and was ―not aware of

any connections‖ the Defendant had. Mr. Jones did admit that he told the police in a

second statement that he was inside the house with the Defendant and Ms. Tanner when

the offenses were committed.

After questioning Mr. Jones about the prior statements he made to the police, the

State introduced a recording of Mr. Jones‘s second statement to the police. The recording

was played in whole to the jury. During the statement, Mr. Jones claimed that the

Defendant committed the murders while he just stood there ―like a f--king idiot.‖ Mr.

Jones also claimed that the Defendant set the house on fire. Mr. Jones told the police that

the Defendant had threatened to kill him and that the Defendant was a member of a white

supremacists gang, the Aryan Circle. Mr. Jones also told the police that the Defendant

and Ms. Tanner had ―a fence‖ they used regularly for stolen goods and that the Defendant

and another Aryan gang member were planning on robbing a coin store.

Mr. Jones testified that in his statements to the police, he was lying in an attempt

to ―save [his] own ass‖ and that most of the statement played to the jury was false. Mr.

Jones also denied that he had been attacked by the Defendant twice while they were in

jail. Mr. Jones admitted that he had been in two ―altercations‖ with the Defendant but

claimed that he ―started it‖ instead of the Defendant. Mr. Jones further testified that he

had not ―been in the same pod‖ with the Defendant in jail in over two years.

IV. Verdict and Sentencing

Based upon the foregoing evidence, the jury convicted the Defendant of all the

charged offenses. The trial court merged all of the murder convictions with Mr. Marsh

listed as the victim into Count 4, felony first degree murder ―during the perpetration of‖ a

robbery. The trial court merged all of the murder convictions with Ms. Marsh listed as

the victim into Count 10, felony first degree murder ―during the perpetration of‖ a

robbery. The trial court merged the two especially aggravated robbery convictions

involving Ms. Marsh as the victim into Count 13. The trial court likewise merged the

two especially aggravated robbery convictions involving Mr. Marsh as the victim into

Count 15. The trial court did not merge Counts 17 and 18 of aggravated arson but did

-13-

merge the aggravated arson conviction in Count 19 into Count 18. The trial court also

merged the Defendant‘s convictions for unlawful possession of a firearm into Count 20.

The Defendant‘s presentence report revealed that the Defendant had prior

convictions for aggravated robbery, aggravated burglary, driving under the influence

(DUI), theft, assault, simple possession, and possession of drug paraphernalia. The

Defendant was on probation for a DUI conviction at the time of these offenses. The

Defendant had an extensive history of probation violations and having alternative

sentences revoked. The Defendant also committed numerous disciplinary infractions

while he was incarcerated.

The Defendant was sentenced to life for each of the felony murder convictions. In

sentencing the Defendant for the other convictions, the trial court found that the

following enhancement factors applied to the Defendant: (1) that the Defendant had a

previous history of criminal convictions and behavior, in addition to those necessary to

establish the appropriate range; (4) that Mr. Marsh was particularly vulnerable ―due to his

physical disability‖; (5) that the victims were treated with exceptional cruelty during the

commission of the offense; (8) that the Defendant had previously failed to comply with

the conditions of a sentence involving release into the community; and (13) that the

Defendant was released on probation at the time of the offenses. Tenn. Code Ann. § 40-

35-114. The trial court did not find that any mitigating factors applied to the Defendant.

The trial court sentenced the Defendant to forty years for each of the especially

aggravated robbery convictions; twenty-five years for each of the aggravated arson

convictions; and two years for the unlawful possession of a firearm conviction. With

respect to consecutive sentencing, the trial court found that the Defendant‘s record of

criminal activity was extensive, that he was on probation when he committed the

offenses, and that he was a dangerous offender whose behavior indicated little or no

regard for human life and no hesitation about committing a crime in which the risk to

human life was high. Tenn. Code Ann. § 40-35-115(b)(2), (4), (6). The trial court

ordered all of the Defendant‘s sentences to be served consecutively, except for the

aggravated arson conviction in Count 18 and the unlawful possession of a firearm

conviction in Count 20, for a total effective sentence of two lifetimes plus 105 years.

ANALYSIS

I. Issues Requiring Reversal

A. Admission of Mr. Jones’s Statement to the Police

The Defendant contends that the trial court erred by allowing the State to admit, as

substantive evidence, the prior statement of Mr. Jones in violation of Tennessee Rules of

-14-

Evidence 613 and 803(26). The Defendant argues that the trial court failed to conduct a

hearing on whether the statement was made under circumstances indicating

trustworthiness as required by Rule 803(26), that the statement was inherently

untrustworthy because Mr. Jones admitted at trial that he was lying in the statement, and

that the trial court introduced the statement in its entirety, which included statements

from Mr. Jones that were not inconsistent with his trial testimony as well as statements

that were ―irrelevant and inflammatory.‖ The State responds that the trial court satisfied

the requirements of Rule 803(26) and that the statement was inconsistent with Mr.

Jones‘s testimony at trial.

During cross-examination, Mr. Jones was asked a litany of questions about two

statements he gave to the police after his arrest. When asked about his first statement to

the police, Mr. Jones testified that ―[a]fter being there for [twelve] hours, [he] told [the

police] what they wanted to hear.‖ Mr. Jones admitted that he told the police the he had

not been inside the victims‘ house but that the Defendant had been.

Mr. Jones also admitted that he told the police that he had given information about

Mr. Marsh to Ms. Tanner and the Defendant, that the Defendant and Ms. Tanner told him

about what happened at the victims‘ house after the robbery, and that he told the police

about the injury to the Defendant‘s hand. Mr. Jones did not remember telling the police

in his first statement that Ms. Tanner and the Defendant ―wanted to do a robbery‖ or

giving the police ―a detailed description‖ of what the Defendant said about the crimes.

Mr. Jones was then asked about a second statement that he gave to the police.5

Mr. Jones testified that he did not remember telling the police he was afraid of the

Defendant or ―the connections that‖ the Defendant had. Mr. Jones did recall telling the

police in the second statement that he was present inside the victims‘ house with Ms.

Tanner and the Defendant during the crimes. At that point, the State sought to have Mr.

Jones‘s second statement played for the jury and admitted as substantive evidence

pursuant to Rule 803(26).

The following exchange then occurred during a bench conference:

[Trial court]: Actually, what‘s happening is, I have to actually conduct a

hearing outside the presence of the [j]ury to determine by a preponderance

of the evidence if the entire statement was made under circumstances

(inaudible).

[Defense counsel]: And the thing is, he‘s gonna say, I lied to save my butt

until the DNA came in.

5

Contrary to the State‘s assertion in its brief, Mr. Jones‘s statement to the police was not given under

oath.

-15-

[Prosecutor]: That‘s different, that‘s - - that‘s an argument, but the question

for - -

[Trial court]: You must realize (inaudible).

[Defense counsel]: Well, then we‘re gonna have to edit.

[Prosecutor]: Oh, no, no. Huh-uh (no). He said that.

[Trial court]: How long is it?

[Prosecutor]: It‘s [twenty] minutes long. Oh, no. He said - -

[Trial court]: Why can‘t we edit it?

[Prosecutor]: Oh, no.

[Defense counsel]: Whenever he says they (inaudible) these two went in

the house.

[Prosecutor]: That‘s what he just said.

[Trial court]: (Inaudible).

[Defense counsel]: It‘s what he was wanting. He said - -

[Prosecutor]: That‘s your argument. That‘s your argument.

[Trial court]: (Inaudible).

[Defense counsel]: Well, I covered it in - - I covered it in the opening.

[Trial court]: (Inaudible).

The statement was then played for the jury in its entirety.

At the beginning of the statement, Mr. Jones offered to tell the police about

―people that [Ms. Tanner and the Defendant] deal with as far as drug dealers.‖ The

detectives then turned the conversation back to the offenses at issue in this case. Mr.

Jones stated that ―s--t happened that [he] didn‘t intend and that [he] didn‘t expect to see

what [he] saw.‖ Mr. Jones told the police that he was not ―a killer‖ and ―not no [sic.]

badass.‖

Mr. Jones then said that on August 16, 2011, he helped the Defendant work on his

mother‘s car at her house. Mr. Jones claimed that later, he told the Defendant how to

enter the victims‘ house and that, at first, he stayed in the car while Ms. Tanner and the

Defendant went inside. Mr. Jones said that, later, he heard ―a yell‖ and went into the

house. Mr. Jones claimed that when he walked in the door, he saw the Defendant ―f--

king beating [Mr. Marsh] to death,‖ and he ―froze up.‖ Mr. Jones told the police that the

Defendant initially ―caught [Mr. Marsh] in the basement.‖

Mr. Jones said that he did not expect the Defendant to kill the victims. Mr. Jones

then identified the roofing hatchet as what the Defendant used to beat Mr. Marsh. At that

point, Mr. Jones broke down crying and said that he ―should have f--king done

something‖ instead of just standing there the entire time ―like a f--king idiot.‖ After

composing himself, Mr. Jones told the police that the Defendant had said later that he had

attacked Mr. Marsh in the downstairs garage, then had attacked Ms. Marsh upstairs, and,

-16-

after that, had attacked Mr. Marsh a second time after Mr. Marsh managed to make it

upstairs.

Mr. Jones stated that Ms. Tanner and the Defendant had ―s--t in the hallway‖ and

that ―they were both grabbing stuff‖ when he walked in the house. Mr. Jones claimed

that he moved out of the way when the Defendant started ―spraying [lighter fluid] f--king

everywhere.‖ Mr. Jones said that the Defendant ran down the hallway and into the back

bedroom with the lighter fluid. Mr. Jones then detailed what he claimed Ms. Tanner and

the Defendant had taken from the house: a safe from the closet in the bedroom, a safety

deposit box, bottles of pills, and jewelry. Mr. Jones also said that he thought Ms. Tanner

left a pillowcase full of ―pain pills‖ in the bedroom.

Mr. Jones stated that he did not know what happened to the hatchet. Mr. Jones

then stated that after they set fire to the house, the Defendant and Ms. Tanner went

―straight to‖ his apartment. Mr. Jones said that the Defendant carried what he had taken

from the victims‘ house inside and started going through it. Mr. Jones claimed that the

Defendant used a pry-bar to ―rip open the safe‖ and screamed at him to hold the safe.

Mr. Jones said that while they were trying to open the safe, the Defendant

screamed at him, ―You better f--king do what you‘re goddamn supposed to do or I‘m

gonna f--king kill you and your kids and your old lady and if I can‘t f--king do it I‘ve got

people that can.‖ Mr. Jones explained that the Defendant was referring to ―his prospects‖

in the Aryan Circle. Mr. Jones and the detectives then discussed the growing prevalence

of Aryan gangs, and the detectives asked how Mr. Jones ―hooked up with‖ the Defendant

because Mr. Jones did not seem like ―the type to hook up with that type of people.‖

Mr. Jones told the detectives that there was not really anything in the safe or the

safety deposit box and that the Defendant was ―real f--king scary‖ after that. Mr. Jones

said that the clothes he wore at the victims‘ house were taken by Ms. Tanner and the

Defendant. Mr. Jones then told the police about the guns he believed the Defendant

owned. Mr. Jones told the police that he knew ―a fence‖ Ms. Tanner and the Defendant

used for stolen antiques. Mr. Jones also told the police that the Defendant and one of his

fellow Aryans gang members were planning on robbing a coin store in Sevier County.

Mr. Jones again offered to give the police the names of people Ms. Tanner and the

Defendant ―deal with.‖

Mr. Jones was asked what their intentions were when they went to the victims‘

house. Mr. Jones said that he did not know what the Defendant was planning to do, but

he thought the Defendant was just going to ―run in‖ and take things. Mr. Jones also said

that the Defendant got the roofing hatchet out of his toolbox before going in the house.

Mr. Jones then told the police that the Defendant had cut one of his fingers trying to open

the safe. Mr. Jones claimed that Ms. Tanner and the Defendant argued at his apartment

-17-

because she left pills at the victims‘ house. Mr. Jones further claimed that the Defendant

was mad at him for ―just [being] in the f--king way.‖

After playing the statement for the jury, it was admitted as substantive evidence.

On redirect examination, Mr. Jones admitted that he lied in the statement to the police

and that he was trying to ―[c]over [his] ass.‖ Mr. Jones further explained that the police

had ―lied to [him] about what they would give [him] so [he] gave them what they wanted

to hear.‖ Mr. Jones also testified that he thought that the police had believed his lies.

During her closing argument, the prosecutor urged the jurors to review Mr. Jones‘s

statement to the police, telling them that the statement was evidence that they could

consider and could listen to in the jury room. The prosecutor asked the jury to consider

―what happened‖ to cause Mr. Jones to change his story. The prosecutor then stated that

Mr. Jones was ―terrified‖ of the Defendant because the Defendant had ―threatened to kill

him and his family‖ and because of ―the organization that [the Defendant was] a part of.‖

The prosecutor stated that the murders made ―no sense‖ because Mr. Jones had stolen

from the victims numerous times and ―never killed them before.‖ The prosecutor then

implied that August 16, 2011, was different because the Defendant was present.

During his closing argument, defense counsel stated that Mr. Jones‘s statement

was ―not in there as evidence, that‘s in there to get you upset and not follow your oath.‖

The prosecutor began her rebuttal argument by stating that the statement was evidence

that the jury could consider. She then asked what reason Mr. Jones would have to lie and

explained that he ―told you in the interview, he is terrified of the [D]efendant and the

Aryan [C]ircle, that‘s it.‖

Mr. Jones‘s statement to the police was hearsay. Hearsay is defined as ―a

statement other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.‖ Tenn. R. Evid. 801(c).

Hearsay is not admissible except as allowed by the rules of evidence or other applicable

law. Tenn. R. Evid. 802. The question of whether a statement fits under one of the

exceptions to the hearsay rule is a question of law and subject to de novo review by this

court. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015).

Tennessee Rule of Evidence 803(26) provides a hearsay exception for a testifying

witness‘s prior inconsistent statement when the statement would be ―otherwise

admissible under [Tennessee Rule of Evidence] 613(b)‖ and satisfies the following

conditions:

(A) The declarant must testify at the trial or hearing and be subject to cross-

examination concerning the statement.

-18-

(B) The statement must be an audio or video recorded statement, a written

statement signed by the witness, or a statement given under oath.

(C) The judge must conduct a hearing outside the presence of the jury to

determine by a preponderance of the evidence that the prior statement was

made under circumstances indicating trustworthiness.

Rule 613(b) provides that ―[e]xtrinsic evidence of a prior inconsistent statement by a

witness is not admissible unless and until the witness is afforded an opportunity to

explain or deny the same and the opposite party is afforded an opportunity to interrogate

the witness thereon, or the interests of justice otherwise require.‖

In addressing Rule 613(b), our supreme court has made clear that ―[e]xtrinsic

evidence of a prior inconsistent statement remains inadmissible when a witness

unequivocally admits to having made the prior statement‖ because ―[t]he unequivocal

admission of a prior statement renders the extrinsic evidence both cumulative and

consistent with a statement made by the witness [] during trial.‖ State v. Martin, 964

S.W.2d 564, 567 (Tenn. 1998). Additionally, the Advisory Commission Comment to

Rule 803(26) makes clear that ―only prior inconsistent statements, and not consistent

statements, are within the ambit of [the] rule.‖

Mr. Jones was not asked about and did not admit to making most of the statements

in the audio recording played for the jury. While not asked about it in reference to the

second statement, Mr. Jones had admitted telling the police that it was the Defendant and

not him who committed the murders. Likewise, Mr. Jones was not asked about the

Defendant‘s alleged plans to rob a coin store or his alleged connections to drug

trafficking. Much of the statement involved Mr. Jones‘s detailed description of how the

Defendant allegedly committed the robbery, murders, and arson. The only thing Mr.

Jones was asked about and did not recall telling the police was that he was afraid of the

Defendant or ―the connections that‖ the Defendant had.

Nowhere in the statement did Mr. Jones actually state that he was afraid or

terrified of the Defendant or the Defendant‘s ―connections.‖ In one instance, Mr. Jones

stated that the Defendant threatened to kill him and his family. Mr. Jones said that the

Defendant claimed if he could not do it, then he knew ―people‖ that could. Mr. Jones

then explained the Defendant‘s alleged connection to the Aryan Circle. Later, Mr. Jones

said the Defendant got ―real f--king scary‖ after finding almost nothing in the safe and

safety deposit box. The only portions of Mr. Jones‘s statement even tangentially related

to his denial were brief, approximately a minute in a statement over twenty minutes long.

Contrary to the prosecutor‘s argument at trial, the statement should have been heavily

edited to exclude the inadmissible portions of the statement.

-19-

Furthermore, the trial court utterly failed in its gatekeeping function as outlined in

803(26). The trial court did not conduct a jury-out hearing and did not question Mr.

Jones about the circumstances of his statement. See State v. Charles Jackson and Willis

Holloway, No. W2010-01133-CCA-R3-CD, 2012 WL 543047, at *10 (Tenn. Crim. App.

Feb. 17, 2012) (where the trial court questioned the witness ―extensively during the jury-

out hearing about the circumstances in which she gave her statement to the police‖). In

fact, the trial court did not even listen to the statement before it was played in its entirety

to the jury. The trial court made no effort to examine the circumstances under which the

statement was made and made no ruling on whether those circumstances indicated

trustworthiness.

While Mr. Jones appears to have been interviewed at the police station by at least

two detectives, he was a defendant in this case with significant motive to place the blame

on his two co-defendants. Mr. Jones testified at trial that his statement contained

numerous lies, and he ultimately pled guilty to all of the offenses arising from the

victims‘ murders. Mr. Jones‘s significant motive when interviewed by the police to place

the blame on the Defendant and his subsequent testimony that he lied in his statement do

not equate with it having been made under circumstances indicating trustworthiness. See

State v. Devonta Amar Cunningham, No. M2012-02203-CCA-R3-CD, 2015 WL 173495,

at *13 (Tenn. Crim. App. Jan. 14, 2015) (holding that statement taken at witness‘ home

by police, nine days after the incident, and based on a story made up and ―that everyone

in the group had agreed to repeat if the police ‗ever came questioning,‘‖ was not given

under circumstances indicating trustworthiness).

Because the statement was not made under circumstances indicating

trustworthiness and Mr. Jones admitted or was not asked about making all but a few brief

portions of the statement, it did not meet the requirements for admission under Rule

613(b) and 803(26). As such, we will now examine the error to determine if it was

harmless. The applicable analysis is whether, ―considering the whole record,‖ the error

―more probably than not affected the judgment or would result in prejudice to the judicial

process.‖ Tenn. R. App. P. 36(b).

While, as discussed below, the evidence against the Defendant was legally

sufficient to sustain his convictions, that is not the determinative question for our

analysis. See State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (stating that an

―inquiry into harmless error does not turn upon the existence of sufficient evidence to

affirm the conviction or even a belief that the jury‘s verdict is correct‖ but on whether the

error ―more probably than not had a substantial and injurious impact on the jury‘s

decision making‖). Here, the evidence against the Defendant came down to a question of

credibility between two co-defendants, Ms. Tanner testifying for the State and Mr. Jones

testifying on behalf of the Defendant.

-20-

In light of the importance of the credibility of the testifying co-defendants, Mr.

Jones‘s statement was highly prejudicial. The statement‘s focus was Mr. Jones‘s detailed

description of how the Defendant had committed these brutal crimes. At one point, Mr.

Jones began to cry at how he did nothing while the Defendant allegedly beat Mr. Marsh

with the roofing hatchet. However, both Ms. Tanner and Mr. Jones testified at trial that

Mr. Jones had actually committed the murders. The statement also contained extremely

prejudicial references to the Defendant participating in drug trafficking and planning to

commit a different robbery with another Aryan Circle member. At one point, the

detectives sympathized with Mr. Jones, stating that the Defendant did not seem like the

type of person Mr. Jones would ―hook up with‖ because Mr. Jones was not a killer.

The prosecutor then relied heavily on the statement during her closing argument,

repeatedly instructing the jury that the whole statement was evidence for it to consider

during deliberations. The prosecutor also specifically urged the jury to listen to the

statement again when it deliberated. Despite the fact that nowhere in the statement did

Mr. Jones claim to be afraid of the Defendant, the prosecutor argued that the statement

showed that Mr. Jones was lying at trial because he was ―terrified‖ of the Defendant

because the Defendant had ―threatened to kill him and his family‖ and because of his

Aryan Circle ties. Under these circumstances, we conclude that the error in admitting the

statement was not harmless and entitles the Defendant to a new trial.

On remand, Mr. Jones‘s prior statement is inadmissible as substantive evidence

pursuant to Rule 803(26) as we have found it not to have been made under circumstances

indicating trustworthiness. With respect to Rule 613(b), the statement will be

inadmissible should Mr. Jones unequivocally admit to having made it. See Martin, 964

S.W.2d at 567. Rule 613(b) will only be applicable if Mr. Jones denies making the

statement or testifies that he does not remember making the statement. Furthermore, only

the portions of the statement that Mr. Jones denies making or cannot recall making would

be admissible under Rule 613(b). See id.

Portions of the statement regarding the Defendant‘s alleged plans to rob a coin

store or connections to drug trafficking would be inadmissible and should be redacted

from any portions of the statement sought to be admitted as extrinsic impeachment

evidence. See Tenn. R. Evid. 404(b). Only after limiting the statement to the portions

that Mr. Jones has denied making or cannot recall making and redacting any improper

propensity evidence from the statement may the trial court admit portions of the

statement solely for use as extrinsic impeachment evidence under Rule 613(b).

B. Aggravated Arson Convictions

The Defendant contends that the trial court erred by failing to merge all of his

convictions for aggravated arson. The Defendant argues that he could only be convicted

-21-

of one count of aggravated arson because ―there was only one structure, the [victims‘]

home,‖ burned and that all of the ―personal property and people present‖ were inside the

home. The State responds that merger of the convictions was not warranted in this case

―because each offense contained an element that the other did not.‖

With respect to the aggravated arson charges, the Defendant was indicted as

follows:

Count 17: That the Defendant ―did knowingly damage, by fire a structure

of Eric Marsh without the consent of all persons having a possessory and

proprietary interest in said structure, and a person, to-wit: Dena Marsh, did

suffer serious bodily injury as a result of said fire, in violation of T.C.A. 39-

14-302[.]‖

Count 18: That the Defendant ―did knowingly damage, by fire a structure

of Eric Marsh without the consent of all persons having a possessory and

proprietary interest in said structure, and a person, to wit: Eric Marsh, did

suffer serious bodily injury as a result of said fire, in violation of T.C.A. 39-

14-302[.]‖

Count 19: That the Defendant ―did knowingly damage, by fire other

property of Eric Marsh with the intent . . . to damage and destroy said other

property for an unlawful purpose, at a time when one or more persons were

present therein said other property, in violation of T.C.A. 39-14-302[.]‖

At the Defendant‘s sentencing hearing, the prosecutor argued that Counts 17 and

18 should not be merged. The prosecutor recognized that both counts involved ―the same

act of setting the fire, but [involved] two different victims.‖ With respect to Count 19,

the prosecutor stated that she thought it would merge into Count 18 because those counts

involved ―the same victim,‖ Mr. Marsh. The prosecutor also stated that she ―did not do

any research‖ on the issue.

Defense counsel argued that the aggravated arson convictions should all have been

merged into one conviction because there was only one fire. The trial court stated

defense counsel ―may be correct‖ as there was only ―one aggravated arson in fact . . .

although there were different victims.‖ Despite acknowledging that defense counsel‘s

argument was possibly correct, the trial court did not merge Counts 17 and 18. The trial

court did merge Count 19 into Count 18.

During the motion for new trial hearing, the prosecutor, in addressing another

issue, explained how she believed the aggravated arson counts were charged in the

indictment. She stated that the indictment ―didn‘t just charge it generally, aggravated

-22-

arson of persons present.‖ Instead, she argued, the indictment ―charged it specifically

with Mr. Marsh being alive and present when the structure was on fire‖ and ―with Ms.

Marsh being alive and present when the structure was on fire.‖

On appeal, the Defendant argues that he should have only been convicted of one

count of aggravated arson because there was only one structure burned, citing to State v.

Lewis, 958 S.W.2d 736, 739 (Tenn. 1997), which held that the term ―structure‖ was

―indivisible for purposes of the arson statutes‖ and allowed for only one conviction

arising from the burning of five apartments contained within a single structure.

On appeal, the State now responds that Count 17 indicted the Defendant for ―the

aggravated arson of Mr. Marsh,‖ that Count 18 similarly indicted the Defendant for ―the

aggravated arson of [Ms.] Marsh,‖ and that only Count 19 indicted the Defendant for ―the

aggravated arson of [the victims‘] residence.‖ The State further responds that Lewis does

not apply to the Defendant‘s case ―because his case does not involve the destruction of

multiple buildings.‖ We do not see the basis for such an argument in light of the plain

language of the arson statutes and applicable case law.

The arson statutes are found in Chapter 14 of the criminal statutes, titled Offenses

Against Property. As applicable to our review, the offense of arson occurs when a person

―knowingly damages any structure by means of fire or explosion . . . [w]ithout the

consent of all persons who have a possessory, proprietary, or security interest therein.‖

Tenn. Code Ann. § 39-14-301(a)(1). Also, as applicable to our review, it is an offense

for a person to ―knowingly damage any personal property, land, or other property, except

buildings or structures covered under § 39-14-301, by means of fire or explosion . . .

[w]ith intent to destroy or damage any such property for any unlawful purpose.‖ Tenn.

Code Ann. § 39-14-303(a)(2) (emphasis added). Aggravated arson occurs when a person

―commits arson as defined in § 39-14-301 or § 39-14-303: (1) When one (1) or more

persons are present therein; or (2) When any person . . . suffers serious bodily injury as a

result of the fire or explosion.‖ Tenn. Code Ann. § 39-14-302(a) (emphasis added).

As our supreme court has explained, the aggravated arson statute ―does not permit

multiple convictions in spite of the fact that multiple persons were victimized by the

fire.‖ State v. Lewis, 44 S.W.3d 501, 508 (Tenn. 2001); see also State v. Imfeld, 70

S.W.3d 698, 705-06 (Tenn. 2002) (noting that the arson statutes do not provide for

separate convictions ―based upon specific, named victims‖). Contrary to the State‘s

arguments, arson offenses are confined to the burning of structures or property and do not

apply to the burning of a person. Cf. State v. Brian Montrel Brawner, et al., No. W2010-

02591-CCA-R3-CD, 2012 WL 1572212, at *9-10 (Tenn. Crim. App. May 3, 2012),

perm. app. denied (Tenn. Sept. 18, 2012); State v. Courtenay Darrell Robertson, No.

W2009-01853-CCA-R3-CD, 2010 WL 4812774, at *5-6 (Tenn. Crim. App. Nov. 18,

2010) (both upholding convictions for aggravated arson where the defendant set fire to

-23-

the personal property of the victim, that property being the clothing worn by the victim at

the time of the fire).

Here, the State‘s argument on appeal that Counts 17 and 18 reflected the arson of

Mr. and Ms. Marsh‘s persons is a gross misinterpretation of the arson statutes. Likewise,

the prosecutor‘s argument at the sentencing and motion for new trial hearings that there

could be multiple convictions for the arson of the victims‘ house because there were

multiple victims inside the house was in direct contradiction of the plain language of the

aggravated arson statute and of our supreme court‘s opinions in the Lewis cases.

Accordingly, we hold that the trial court erred in refusing to merge Counts 17 and 18.

Should the Defendant be convicted on retrial of Counts 17 and 18, the trial court is

instructed to merge the convictions.

With respect to Count 19,6 it charged the Defendant with knowingly damaging by

fire other property of Eric Marsh with the intent to destroy or damage the property for an

unlawful purpose pursuant to Tennessee Code Annotated section 39-14-303(a)(2). The

indictment elevated the offense to aggravated arson by alleging that ―one or more persons

were present therein said other property‖ at the time of the fire. Tenn. Code Ann. § 39-

14-302(a)(1). As such, the trial court instructed the jury with respect to Count 19 that the

State was required to establish beyond a reasonable doubt as follows:

(1) that the defendant knowingly damaged by fire or explosion any personal

property, or property other than buildings or structures; and

(2) that the defendant did so with intent to destroy or damage the said

property for an unlawful purpose; and

(3) that one or more persons were present therein.

Based upon the indictment and jury instruction for Count 19, the State was

required to prove that the Defendant damaged by fire personal property belonging to Mr.

Marsh other than the victims‘ house, that the Defendant did so with the intent to destroy

or damage the property for an unlawful purpose, and that one or more persons were

present inside the personal property. See Black‘s Law Dictionary 1517 (8th ed. 2004)

(defining ―therein‖ ―[i]nside or within that thing‖). Based upon the evidence adduced at

trial, the only personal property belonging to Mr. Marsh that was set on fire was the

property inside the victims‘ house.

It is arguable that the State established that this property was burned with the

intent to destroy or damage it for an unlawful purpose given that it was within the house

at the time the house was set on fire, and the only evidence of use of an accelerant at trial

6

While the trial court merged the conviction in Count 19 into Count 18, we will examine Count 19

because the case is being remanded for a new trial.

-24-

dealt with the house, not the property therein. However, it is clear from the record that

the victims were inside the house and not some other form of property at the time the fire

was started. As such, they were not ―present therein‖ the personal property at issue in

Count 19. The factual scenario alleged in Count 19 would justify an aggravated arson

conviction when a defendant set fire to some form of personal property that could contain

a person, for example, setting fire to a car while a person was inside, but that was not the

case here. Accordingly, we conclude that the State failed to prove an essential element of

Count 19, that there was a person ―present therein‖ the personal property burned.

Therefore, we reverse the Defendant‘s conviction and dismiss Count 19.

II. Defendant’s Remaining Issues

A. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to sustain his

convictions. The Defendant does not challenge the sufficiency with respect to a specific

offense or the applicability of the criminal responsibility statute to his convictions. See

Tenn. Code Ann. § 39-11-402. Rather, the Defendant argues that the evidence was

insufficient because there was no forensic evidence linking him to the crimes, that Ms.

Tanner was not credible, and that her testimony should not have outweighed the

testimony of the defense witnesses. The State responds that the evidence was sufficient

to sustain the Defendant‘s convictions.

An appellate court‘s standard of review when the defendant questions the

sufficiency of the evidence 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 court does not reweigh the evidence, rather, it presumes that the jury

has resolved all conflicts in the testimony and 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). Questions regarding witness

credibility, conflicts in testimony, and the weight and value to be given to evidence were

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict ―removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury‘s verdict.‖ Bland, 958 S.W.2d at 659; State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict ―may not be based solely

upon conjecture, guess, speculation, or a mere possibility.‖ State v. Cooper, 736 S.W.2d

125, 129 (Tenn. Crim. App. 1987). However, ―[t]here is no requirement that the State‘s

proof be uncontroverted or perfect.‖ State v. Williams, 657 S.W.2d 405, 410 (Tenn.

1983). Put another way, the State is not burdened with ―an affirmative duty to rule out

-25-

every hypothesis except that of guilt beyond a reasonable doubt.‖ Jackson, 443 U.S. at

326.

The foregoing standard ―applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of [both] direct and circumstantial evidence.‖

State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Our supreme

court has held that circumstantial evidence is as probative as direct evidence. State v.

Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the supreme court rejected

the previous standard which ―required the State to prove facts and circumstances so

strong and cogent as to exclude every other reasonable hypothesis save the guilt of the

defendant, and that beyond a reasonable doubt.‖ Id. at 380 (quoting State v. Crawford,

470 S.W.2d 610, 612 (Tenn. 1971)) (internal quotation marks omitted).

Instead, ―direct and circumstantial evidence should be treated the same when

weighing the sufficiency of such evidence.‖ Dorantes, 331 S.W.3d at 381. The reason

for this is because with both direct and circumstantial evidence, ―a jury is asked to weigh

the chances that the evidence correctly points to guilt against the possibility of inaccuracy

or ambiguous inference.‖ Id. at 380 (quoting Holland v. United States, 348 U.S. 121, 140

(1954)). To that end, the duty of this court ―on appeal of a conviction is not to

contemplate all plausible inferences in the [d]efendant‘s favor, but to draw all reasonable

inferences from the evidence in favor of the State.‖ State v. Sisk, 343 S.W.3d 60, 67

(Tenn. 2011).

Here, the jury was presented with two plausible theories based upon the competing

testimony of co-defendants Ms. Tanner and Mr. Jones. Ms. Tanner testified that the

Defendant participated in the offenses and shared in their proceeds. Contrary to the

Defendant‘s argument in his brief, there was forensic evidence linking him to the crimes,

his fingerprints were found on the shotgun taken from the victims‘ home. Mr. Jones

testified on the Defendant‘s behalf that the Defendant had no knowledge of the plan to

rob the victims, never entered the house, and did not share in the proceeds of the crimes.

The fact that the jury accredited Ms. Tanner‘s testimony and chose not to believe the

testimony of Mr. Jones and Mr. Cox ―does not cause its verdict to be suspect.‖ State v.

Leath, 461 S.W.3d 73, 104 (Tenn. Crim. App. 2013). Questions regarding the credibility

of the witnesses are the province of the jury, and will not be revisited by this court.

Bland, 958 S.W.2d at 659. Accordingly, the Defendant‘s argument with respect to this

issue is without merit.

B. Stipulation of the Defendant’s Prior Convictions

The Defendant contends that the trial court erred by not allowing him to stipulate

that he had been convicted of prior felonies without disclosing that the convictions were

for crimes of force and violence. The Defendant argues that it was ―extremely prejudicial

-26-

to tell [the] jury that he was convicted before for crimes of violence and force‖ and that

he was faced with an impossible choice between accepting the State‘s offer that he

stipulate to having prior felony convictions involving violence and force or having the

State prove the same with certified copies of his prior convictions. The State responds

that the fact that the Defendant had prior felony convictions for crimes of violence and

force were essential elements of the unlawful possession of a firearm charges in Counts

20 and 21. As such, the State concludes, the trial court did not err in accepting the

Defendant‘s stipulation that stated he had been convicted of felonies involving crimes of

violence and force but not naming the offenses.

The Defendant was charged in Count 20 with unlawful possession of a firearm

―having been convicted of a felony involving the use of violence,‖ specifically

aggravated robbery. In Count 21, the Defendant was charged with unlawful possession

of a firearm ―having been convicted of a felony involving the use of force,‖ specifically

aggravated burglary.

Prior to trial, defense counsel requested that the trial court bifurcate Counts 20 and

21, which the trial court ultimately rejected. Defense counsel then requested that the

Defendant be allowed to stipulate merely to the fact that he was a convicted felon. The

trial court rejected this request citing the fact that the felony involved force or violence

was an essential element of the offense. Defense counsel then requested that the

Defendant be allowed to stipulate only to having committed a felony involving force.

The trial court rejected this request because Count 20 specifically listed ―the use of

violence.‖

The Defendant objected to having to choose between the stipulation proposed by

the State and having the State enter certified copies of his prior convictions into evidence

at trial. Prior to the conclusion of the trial, a stipulation between the Defendant and the

State was entered into evidence stating that the Defendant had ―a previous felony

conviction involving force‖ and ―a previous felony conviction involving violence.‖

As pertinent to our review, Tennessee Code Annotated section 39-17-

1307(b)(1)(A) provides that a person commits an offense ―who unlawfully possesses a

firearm‖ and ―[h]as been convicted of a felony involving the use or attempted use of

force, violence, or a deadly weapon.‖ There is no dispute that the Defendant‘s prior

convictions for aggravated robbery and aggravated burglary qualify as felony convictions

involving the use of violence and force, respectively.

At the outset, we note that the better procedure where, as here, the defendant is

charged with offenses involving the use of violence and force and also charged with the

status offense of unlawful possession of a firearm for having a similar prior felony

conviction would be to bifurcate the proceedings and address the unlawful possession of

-27-

a firearm charge separately. See e.g., State v. Taft Arkey Murphy, No. M2007-00403-

CCA-R3-CD, 2008 WL 4735494 (Tenn. Crim. App. Oct. 27, 2008); State v. Alonzo

Maurice Rogan, No. M2002-01603-CCA-R3-CD, 2004 WL 112864 (Tenn. Crim. App.

Jan. 22, 2004) (both cases where trial courts bifurcated the unlawful possession of a

firearm charge from the remaining charges).

With respect to status offenses, like the unlawful possession of a firearm offenses

at issue here, it is well established that ―specific reference[s] to [a] defendant‘s prior

felonies‖ are ―relevant to establish an essential element of the crime for which the

defendant is being tried.‖ State v. James, 81 S.W.3d 751, 760-61 (Tenn. 2002). In the

limited circumstance that the defendant offers to stipulate the applicable status, the

probative value of evidence of the defendant‘s prior convictions is, ―as a matter of law,

outweighed by the risk of unfair prejudice.‖ Id. at 762. In such circumstances, the trial

court should accept ―the defendant‘s stipulation in lieu of disclosing the names or nature

of his previous convictions.‖ Id.

However, ―a defendant can offer to stipulate to the elements of an offense, but by

doing so cannot prevent the jury from learning of an element of the offense or the

stipulation.‖ State v. Marvin Senathan Hall, Jr., No. W2008-00933-CCA-R3-CD, 2009

WL 1643435, at *8 (Tenn. Crim. App. June 12, 2009), perm. app. denied (Tenn. Nov. 30,

2009). Here, ―the State had to prove that the [D]efendant had previously been convicted

of not just a felony,‖ but crimes of violence and force, as charged in Counts 20 and 21.

Id. The Defendant‘s proposed stipulations that he was a convicted felon and that he had

only committed a felony involving force ―did not encompass the elements the State had

to prove, which would have left the jury with a lack of coherence as to the offense.‖ Id.

Accordingly, we conclude that the trial court did not err in accepting the stipulation

eventually agreed to by the State and the Defendant.

C. Admission of Autopsy Photograph

The Defendant contends that the trial court erred by admitting an autopsy

photograph of the charred body of Ms. Marsh. The Defendant argues that the picture was

not relevant and extremely prejudicial because it depicted injuries that occurred after the

victim‘s death. The State responds that the picture was relevant ―because it showed a

‗pugilistic pose,‘ provided a spatial context of where [Ms.] Marsh was when she died,

and indicated that she was alive during the fire.‖

Prior to the testimony of Dr. Lochmuller, the trial court held a jury-out hearing to

determine the admissibility of several autopsy photographs. In reference to the picture at

issue on appeal, the trial court stated that it showed ―what happens in reaction‖ to a fire

―[i]f you‘re alive.‖ The trial court further stated that the picture was ―extraordinarily

prejudicial,‖ but that it was probative for ―determining whether or not the individual was

-28-

alive, whether or not we have especially aggravated robbery, especially aggravated . . .

arson.‖ The trial court also stated that the photograph was relevant to establish ―the

manner of death.‖

During Dr. Lochmuller‘s testimony, the picture was admitted into evidence. The

picture showed Ms. Marsh‘s burned torso, arms, and face. The face was completely

charred and only the top row of Ms. Marsh‘s teeth and her tongue, protruding from the

mouth and greyed from the thermal injuries, were recognizable. Ms. Marsh‘s shoulders

were hunched forward, her arms were flexed at the elbows, and her hands had clenched

into fists. Ms. Marsh‘s left arm had broken leaving her radius and ulna bones exposed in

the picture.

Dr. Lochmuller testified that the broken bones were thermal injuries caused by the

intensity of the fire and not ―something that occurred during life, this [was] something

that occurred after death because of the fire.‖ Dr. Lochmuller then explained that a

―pugilistic pose‖ was caused by the muscles dehydrating during the fire and causing the

shoulders, arms, and hands to flex into ―kind of a crouched boxer‘s pose.‖ Dr.

Lochmuller testified that the pose would ―depend on the positioning of the body as it was

laying [sic] . . . in the house fire, but her positioning here is fixed because of the . . .

thermal injury.‖ That was the extent of Dr. Lochmuller‘s testimony regarding the picture.

He did not refer to the picture or the ―pugilistic pose‖ in making his determination that

Ms. Marsh was still alive at the time the fire was started or explain how the position of

her body affected the injuries depicted in the picture.

During the motion for new trial hearing, the prosecutor argued that the Defendant

had been charged with aggravated arson with respect to individual victims rather than

―generally, aggravated arson of persons present‖; therefore, the photograph was relevant

to establish that Ms. Marsh was alive at the time the fire was started. In denying the

motion for new trial, the trial court stated that the photograph was ―very gruesome‖ and

that Dr. Lochmuller had testified that the injuries depicted in the photograph ―would have

occurred after the death . . . of the victim.‖ However, the trial court ultimately found the

photograph to be relevant.

The admissibility of photographs is governed by Tennessee Rules of Evidence 401

and 403. See State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978). Under these rules, the

trial court must determine, first, whether the photograph is relevant. Tenn. R. Evid. 401;

Banks, 564 S.W.2d at 949. Next, the trial court must determine whether the probative

value of the photograph is substantially outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 403; Banks, 564 S.W.2d at 950-51. ―Unfair prejudice‖ is an ―undue

tendency to suggest decision on an improper basis, commonly, though not necessarily, an

emotional one.‖ Banks, 564 S.W.2d at 951.

-29-

Tennessee courts follow a liberal policy in the admission of photographs in both

civil and criminal cases. Banks, 564 S.W.2d at 949. As such, whether to admit a

photograph rests within the sound discretion of the trial court and will not be reversed

absent a clear showing of an abuse of that discretion. Id.; see also State v. Dickerson,

885 S.W.2d 90, 92 (Tenn. Crim. App. 1993); State v. Allen, 692 S.W.2d 651, 654 (Tenn.

Crim. App. 1985).

―Graphic, gruesome, or even horrifying photographs of crime victims may be

admitted into evidence if they are relevant to some issue at trial and probative value is not

[substantially] outweighed by their prejudicial effect.‖ State v. Brock, 327 S.W.3d 645,

694 (Tenn. Crim. App. 2009). Autopsy photographs, in particular, must never be used

―solely to inflame the jury and prejudice them against the defendant‖ and must be

relevant to prove some material aspect of the case. Banks, 564 S.W.2d at 951.

Additionally, this court has held that ―photographs are not necessarily rendered

inadmissible because they are cumulative of other evidence or because descriptive words

could be used.‖ State v. Derek Williamson, No. M2010-01067-CCA-R3-CD, 2011 WL

3557827, at *9 (Tenn. Crim. App. Aug. 12, 2011).

The photograph at issue was not relevant to any material aspect of the case. As

charged in Counts 17 and 18, the aggravated arson statute required proof that ―any

person‖ suffered ―serious bodily injury as a result of the fire.‖ Tenn. Code Ann. § 39-14-

302(a)(2) (emphasis added). As such, the requirements for aggravated arson were

satisfied when Dr. Lochmuller testified that Mr. Marsh died as a result of the fire.

Furthermore, Dr. Lochmuller specifically testified that the injury to Ms. Marsh‘s left arm

occurred after her death.

Dr. Lochmuller did not specifically testify as to whether any of the other injuries

depicted in the photograph occurred before or after Ms. Marsh‘s death. Nor did he testify

as to how the injuries depicted in the photograph ―provided a spatial context of where

[Ms.] Marsh was when she died.‖ Dr. Lochmuller did not rely on the photograph or any

of the injuries depicted therein when he determined that Ms. Marsh was alive at the time

the fire was started. Instead, he referred to the soot found in her nostrils and lungs as well

as the carbon monoxide in her blood. Accordingly, we conclude that the trial court

abused its discretion in admitting the photograph as it had little probative value and was

highly prejudicial.

However, there were several other graphic and gruesome autopsy photographs

admitted during the trial which the Defendant did not object to or challenge on appeal. A

photograph of Ms. Marsh‘s body as it was discovered in the back bedroom was admitted

during Ms. Wieberg‘s testimony. During Dr. Lochmuller‘s testimony several

photographs of Ms. Marsh‘s head with the scalp cut open and peeled back to show the

fractures to her skull were admitted into evidence. Mr. Marsh suffered similar injures,

-30-

but similar photographs were not admitted during Dr. Lochmuller‘s testimony regarding

his autopsy. Additionally, several of the photographs of Ms. Marsh‘s head injuries

showed significant charring to her head and arms.

As such, we conclude that the trial court‘s error in admitting the irrelevant

photograph was harmless in light of the photographs admitted to show the crime scene

and to assist Dr. Lochmuller in his testimony. See Tenn. R. App. P. 36(b) (providing that

a ―final judgment from which relief is available and otherwise appropriate shall not be set

aside unless, considering the whole record, error involving a substantial right more

probably than not affected the judgment or would result in prejudice to the judicial

process‖).

D. Vouching for Ms. Tanner’s Credibility

The Defendant contends that the State improperly vouched for the credibility of

Ms. Tanner. The Defendant argues that the prosecutor improperly vouched for Ms.

Tanner‘s credibility during closing arguments by stating that the jury needed to look at

―who [had] personal knowledge‖ of the offenses and that the jury had to decide if it

believed Mr. Jones or Ms. Tanner‘s testimony. The Defendant further argues that the

prosecutor, by asking Ms. Tanner about her plea agreement with the State, intended ―to

gain advantage of the State‘s unique and exclusive position regarding offers and

consideration related to them regarding testifying co-defendants.‖ The State responds

that the Defendant has waived this issue by failing to contemporaneously object to the

alleged misconduct.

At the start of her direct examination, the following exchange occurred between

the prosecutor and Ms. Tanner:

[Prosecutor]: Have I extended an offer to your lawyer?

[Ms. Tanner]: Yes, ma‘am

[Prosecutor]: What offer did I extend to your lawyer?

[Ms. Tanner]: [Twenty-five] years at [thirty] percent.

[Prosecutor]: In exchange for what?

[Ms. Tanner]: My truthful testimony

[Prosecutor]: Have I told you what to say?

[Ms. Tanner]: No, ma‘am.

[Prosecutor]: If you do not tell the truth, then do we have a resolution of

your case?

[Ms. Tanner]: I don‘t understand.

[Prosecutor]: Okay. What happens if you don‘t tell the truth?

[Ms. Tanner]: I don‘t get the deal.

-31-

[Prosecutor]: And so, you understand that you‘ve got to testify truthfully

today?

[Ms. Tanner]: Yes, ma‘am.

During cross-examination, defense counsel asked Ms. Tanner about her plea

agreement, and the following exchange occurred:

[Defense counsel]: And you were to testify, right?

[Ms. Tanner]: Yes, sir.

[Defense counsel]: What if you came in and said [the Defendant] wasn‘t

even there? What do you think the State would do?

[Ms. Tanner]: Take my deal back from me.

[Defense counsel]: Right. You‘re here to get [the Defendant], right?

[Ms. Tanner]: I‘m just here to give my testimony for the State.

On redirect examination, the prosecutor asked Ms. Tanner if what she had testified

to was the truth, and Ms. Tanner responded that it was. The prosecutor then questioned

Ms. Tanner as follows:

[Prosecutor]: Remind this [j]ury what happens if you lie?

[Ms. Tanner]: I lose my deal.

[Prosecutor]: Now - - and I want to be clear about this. Have I ever sat

down and talked to you?

[Ms. Tanner]: No.

[Prosecutor]: Have I ever, besides being in [c]ourt, met you?

[Ms. Tanner]: No, ma‘am.

[Prosecutor]: And I want to be clear. Was our deal for you to testify as to

what you told the police?

[Ms. Tanner]: It was the truth, just the truthful testimony.

[Prosecutor]: The truthful testimony. Whether that was what you told the

police that night, we wanted you to tell the truth right?

[Ms. Tanner]: Yes, ma‘am

[Prosecutor]: Is that an incentive for you to tell the truth?

[Ms. Tanner]: Yes.

[Prosecutor]: Because if you don‘t, if you get caught in a lie, what

happens?

[Ms. Tanner]: And I don‘t - - I lose the deal. I don‘t know what happens to

me then.

During her closing argument, the prosecutor told the jury that ―what you‘ve gotta

do in order to find out what took place inside of that home, you‘ve gotta talk to the folks

who have personal knowledge about what went on inside of that home.‖ The prosecutor

-32-

then discussed Ms. Tanner‘s testimony and compared it to Mr. Jones‘s testimony. The

prosecutor stated that the jury had ―to decide which of their statements‖ it believed.

During his closing argument, defense counsel heavily attacked Ms. Tanner‘s credibility

and characterized her as a liar. Defense counsel asked the jury, ―if [Ms. Tanner has] lied

to all these people on small stuff, what is she capable of doing to save herself from‖ a life

sentence.

Closing arguments ―have special importance in the adversarial process,‖ and the

parties ―have an ancient right to make closing arguments.‖ State v. Banks, 271 S.W.3d

90, 130 (Tenn. 2008). Closing arguments allow the parties ―to present their theory of the

case and to point out the strengths and weaknesses in the evidence to the jury.‖ Id.

Attorneys ―should be given great latitude in both the style and the substance of their

arguments.‖ Id. at 131. This leeway often results in closing arguments in criminal cases

having a ―rough and tumble quality‖ to them. Id. (quoting State v. Skakel, 888 A.2d 985,

1060-61 (Conn. 2006)). However, while attorneys ―may strike hard blows, . . . [they are]

not at liberty to strike foul ones.‖ Id. (quoting Berger v. United States, 295 U.S. 78, 88

(1935)).

―[A] prosecutor‘s closing argument must be temperate, must be based on the

evidence introduced at trial, and must be pertinent to the issues in the case.‖ Banks, 271

S.W.3d at 131. This court has found five general areas of prosecutorial misconduct with

respect to closing arguments, the only one of which at issue in this case is that it ―is

unprofessional conduct for the prosecutor to express [her] personal belief or opinion as to

the truth or falsity of any testimony or evidence or the guilt of the defendant.‖ State v.

Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citing Standards Relating to the

Prosecution Function and the Defense Function §§ 5.8-5.9 Commentary (ABA Project on

Standards for Criminal Justice, Approved Draft 1971)).

Elaborating on this particular type of prosecutorial misconduct, our court noted

that ―[e]xpressions by the prosecutor are a form of unsworn, unchecked testimony and

tend to exploit the influence of the prosecutor‘s office and undermine the objective

detachment which should separate a lawyer from the cause for which [she] argues.‖

Goltz, 111 S.W.3d at 6 (citing Standards § 5.8(b) Commentary b). The ―witnesses must

stand on their own,‖ and this prohibition ―prevents the advocate from personally

endorsing or vouching for‖ a witness, ensuring that ―the cause . . . turn[s] on the

evidence, not on the standing of the advocate.‖ Id.

―A criminal conviction should not be lightly overturned solely on the basis of the

prosecutor‘s closing argument.‖ Banks, 271 S.W.3d at 131. Instead, ―an improper

closing argument will not constitute reversible error unless it is so inflammatory or

improper that it affected the outcome of the trial to the defendant‘s prejudice.‖ Id. In

reviewing the propriety of a prosecutor‘s closing argument, this court considers:

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(1) the conduct at issue in light of the facts and circumstances of the case,

(2) the curative measures undertaken by the trial court and the prosecution,

(3) the intent of the prosecutor in making the improper argument, (4) the

cumulative effect of the improper argument and any other errors in the

record, and (5) the relative strengths and weaknesses of the case.

Id.

The statements of the prosecutor highlighted by the Defendant in his brief did not

amount to an improper comment on the credibility of the witnesses. Rather, the

prosecutor stated the simple fact that the only way ―to find out what took place inside of

that home‖ would be to look at the testimony of the two witnesses who had ―personal

knowledge about what went on inside of that home.‖ The prosecutor then went on to

compare the testimony of the two co-defendants before stating, correctly, that the case

would turn on which of the two co-defendants the jury believed. Defense counsel raised

the same points during his closing argument and heavily attacked Ms. Tanner‘s

credibility. The prosecutor‘s closing argument on this issue was not so inflammatory or

improper that it affected the outcome of the trial to the defendant‘s prejudice.

More troubling was the prosecutor‘s questioning of Ms. Tanner about her plea

agreement with the State. Generally, a prosecutor may ―refer to the plea agreement of a

testifying witness‖ and ―elicit testimony about its terms.‖ United States v. Francis, 170

F.3d 546, 550 (6th Cir. 1999). However, when the prosecutor makes statements that the

witness‘ plea agreement ―would be in jeopardy‖ if ―the government or the judge did not

believe that the [witness was] being truthful‖ such statements imply to the jury ―that the

government and the court [are] satisfied that the [witness was] truthful.‖ United States v.

Carroll, 26 F.3d 1380, 1389 (6th Cir. 1994). These types of statements place ―the

prestige of the government, and even of the court, behind the credibility of‖ the witness

and ―‗inevitably give jurors the impression that the prosecutor is carefully monitoring the

testimony of the cooperating witness to make sure that the latter is not stretching the

facts—something the prosecutor usually is quite unable to do.‘‖ Id. at 1388-89 (quoting

United States v. Arroyo-Angulo, 580 F.2d 1137, 1150 (2d. Cir. 1978) (Friendly, J.,

concurring)).

Here, the prosecutor repeatedly asked Ms. Tanner about what would happen if

she testified untruthfully, and Ms. Tanner responded every time that she would ―lose

[her] deal.‖ This line of questioning implied that the prosecutor was in a special position

to judge the truthfulness of Ms. Tanner‘s testimony and that, having satisfied the

prosecutor with the truthfulness of her testimony, Ms. Tanner would ultimately receive

her plea agreement. The prosecutor compounded this error by asking Ms. Tanner if the

threat of having her plea agreement revoked was ―an incentive . . . to tell the truth.‖ Ms.

Tanner responded that it was and later said that she did not know what would happen to

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her if her plea agreement was withdrawn. Taken as a whole, this implied to the jury that

the prosecutor was satisfied with the truthfulness of Ms. Tanner‘s testimony and

constituted improper vouching.

However, the Defendant did not object to these questions at trial and did not raise

this issue in his motion for new trial. See Tenn. R. App. P. 3(e), 36(a) (stating that full

appellate review is waived when a party fails to contemporaneously object to an error or

raise it in a motion for new trial). As such, this error would be reversible only if it rises

to the level of plain error. The doctrine of plain error applies when all five of the

following factors have been established:

(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely affected;

(d) the accused must not have waived the issue for tactical reasons; and

(e) consideration of the error must be ―necessary to do substantial justice.‖

State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d

355, 360 (Tenn. 2003)) (internal brackets omitted). ―An error would have to [be]

especially egregious in nature, striking at the very heart of the fairness of the judicial

proceeding, to rise to the level of plain error.‖ Id. at 231.

Here, the error does not constitute plain error because the Defendant has failed to

show that he did not waive the issue for tactical reasons. Page, 184 S.W.3d at 230.

Defense counsel used the threat of Ms. Tanner‘s deal being withdrawn to impeach her on

cross-examination. Defense counsel asked Ms. Tanner what the State would do if she

testified that the Defendant was not present at the offenses, and she responded that they

would withdraw her plea agreement. During his closing argument, defense counsel

characterized Ms. Tanner as a liar and asked the jury to think about what Ms. Tanner was

capable of doing in order to avoid a life sentence. All of this is consistent with a tactical

decision to waive the issue in order to use it to attack Ms. Tanner‘s credibility.

Accordingly, we conclude that the error does not rise to the level of plain error.

E. Jury Instruction Regarding Possession of Recently Stolen Property

The Defendant contends that the trial court erred by instructing the jury regarding

the inferences that could be drawn from the possession of recently stolen property. The

Defendant argues that the instruction was not warranted ―given the contested facts of this

case.‖ The State responds that the instruction was warranted because ―there was a

rational connection between the possession of the stolen property and the [D]efendant‘s

participation in the robbery.‖

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Over the Defendant‘s objection, the trial court instructed the jury as follows:

If you find beyond a reasonable doubt from the evidence that the

property in question had been recently stolen and that soon thereafter the

same property was discovered in the exclusive possession of the defendant

or the defendant was in joint possession of the stolen property, this

possession, unless satisfactorily explained, is ordinarily a circumstance

from which you may reasonably draw an inference that the defendant

gained possession through theft.

Furthermore, if you find beyond a reasonable doubt from the

evidence that the defendant gained possession of the property in question

through theft, . . . and you also find beyond a reasonable doubt that the theft

could only have been accomplished through robbery, you may also

reasonably draw an inference that the defendant committed such offense, if

this inference is substantiated by facts and circumstances which corroborate

that the defendant actually committed the robbery and was not merely a

possessor of stolen property. This corroborating evidence need only be

slight, and need not by itself be sufficient to warrant an inference of guilt.

As corroboration, you may consider the attributes of possession – time,

place, and manner, that the defendant had an opportunity to commit the

crime charged, the defendant‘s conduct, or any other evidence which tends

to connect the defendant with the crime charged.

However, you are never required to make this inference. It is for

you to determine whether the facts and circumstances shown by the

evidence in this case warrant any inference which the law permits you to

draw from the possession of recently stolen property.

When the evidence is offered that the defendant was in possession of

recently stolen property, the defendant has a right to introduce evidence that

he came into possession of the property lawfully, or possession may be

satisfactorily explained through other circumstances or other evidence,

independent of any testimony or evidence offered by the defendant.

In considering whether possession of recently stolen property has

been satisfactorily explained, you are reminded that in the exercise of

constitutional rights, the accused need not take the witness stand to testify.

The term ―recently‖ is a relative term and has no fixed meaning.

Whether property may be considered as recently stolen depends upon the

nature of the property and all the facts and circumstances shown by the

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evidence in the case. The longer the period of time since the theft, the more

doubtful becomes the inference which may be drawn from unexplained

possession.

The correctness of the inference and the weight to be given any

explanation that may be shown by the evidence are matters that must be

determined by you, and you are not bound to accept either. You must

weigh all the evidence presented as to the defendant‘s alleged possession of

the property in question and decide in the light of all the facts and

circumstances present whether any inference is warranted. You are

reminded that the burden of proving the defendant‘s guilt beyond a

reasonable doubt remains on the State.

The trial court also instructed the jury, generally, that it was ―not required to make‖ any

inferences and that it was ―the exclusive province of the Jury to determine whether the

facts and circumstances shown by all the evidence in the case‖ warranted the inference.

A defendant is entitled to ―a correct and complete charge of the law governing the

issues raised by the evidence presented at trial.‖ State v. Brooks, 277 S.W.3d 407, 412

(Tenn. Crim. App. 2008) (citing State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App.

1995)). In determining whether a jury instruction correctly, fully, and fairly sets forth the

applicable law, we review the instruction in its entirety. Id. (citing State v. Guy, 165

S.W.3d 651, 659 (Tenn. Crim. App. 2004)). ―Phrases may not be examined in isolation.‖

Id. (citing State v. Dellinger, 79 S.W.3d 458, 502 (Tenn. 2002)). On appellate review, an

erroneous jury instruction will result in a reversal only where it ―so infected the entire

trial that the resulting conviction violates due process.‖ State v. Rimmer, 250 S.W.3d 12,

31 (Tenn. 2008) (quoting Cupp v. Naughten, 414 U.S. 141 (1973)) (internal quotation

marks omitted).

Our supreme court has upheld jury instructions stating that possession of recently

stolen property, unless satisfactorily explained, creates a permissible inference that the

possessor committed the theft. State v. James, 315 S.W.3d 440, 450-51 (Tenn. 2010).

Our supreme court noted that such ―[i]nferences from recently stolen property have a

long history and widespread acceptance.‖ Id. at 448 n.5. Additionally, our supreme

court has held that a jury may ―infer a burglary from possession of recently stolen

property only when there exists a rational connection between possession and

participation, when guilt more likely than not flows from possession, and, importantly,

when there is some other evidence corroborating the burglary that warrants the

inference.‖ Id. at 452. In doing so, our supreme court cited with approval a selection

from the California Pattern Instructions ―which can apply equally to theft, burglary, or

robbery.‖ Id. at 454 n.13. Likewise, this court has previously held that a robbery could

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be inferred from possession of recently stolen property. Raynor v. State, 447 S.W.2d

391, 393 (Tenn. Crim. App. 1969).

Here, the evidence at trial established that the Defendant and Ms. Tanner were

arrested two days after the murders with Mr. Marsh‘s shotgun in the back of the

Defendant‘s Ford Explorer. Later testing revealed the Defendant‘s fingerprints on the

shotgun. Police also found Ms. Marsh‘s jewelry and jewelry boxes at the home where

the Defendant and Ms. Tanner lived. Ms. Tanner and Mr. Jones both testified at trial that

the property was taken from the victims during a robbery. Ms. Tanner further testified

that the Defendant participated in the robbery, removing items from the victims‘ house,

and that he intended to sell the shotgun. Additionally, the trial court instructed the jury

that it was not required to make the inference, recognized the Defendant‘s right not to

testify at trial, and emphasized that the burden was on the State to prove the Defendant‘s

guilt beyond a reasonable doubt. See James, 315 S.W.3d at 454. Accordingly, we

conclude that the trial court did not err in instructing the jury regarding the inferences that

could be drawn from the possession of recently stolen property.

F. Consecutive Sentencing

The Defendant contends that the trial court erred by imposing partial consecutive

sentences. The Defendant‘s sole argument with respect to this issue is that his total

effective sentence of two consecutive life sentences plus 105 years was not the least

severe measure necessary to achieve the purposes for which the sentence was imposed.

The State responds that the trial court did not abuse its discretion when it imposed partial

consecutive sentences because the Defendant had an extensive criminal record and was

on probation at the time of the offense.

When reviewing a trial court‘s imposition of consecutive sentences, ―the

presumption of reasonableness applies‖ and gives ―deference to the trial court‘s exercise

of its discretionary authority to impose consecutive sentences if it has provided reasons

on the record establishing at least one of the seven grounds listed in Tennessee Code

Annotated section 40-35-115(b).‖ State v. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013).

―Any one of [the] grounds [listed in section 40-35-115(b)] is a sufficient basis for the

imposition of consecutive sentences.‖ Id. at 862 (citing State v. Dickson, 413 S.W.3d

735 (Tenn. 2013)).

Here, the trial court concluded that the Defendant was an offender whose record of

criminal activity was extensive, that he was a dangerous offender, and that he committed

these offenses while on probation. See Tenn. Code Ann. § 40-35-115(b)(2), (4), (6). It

was undisputed that the Defendant was on probation for a DUI conviction when he

committed these offenses. It was also established that in addition to the DUI conviction,

the Defendant had prior convictions for aggravated robbery, aggravated burglary, theft,

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assault, casual possession, and possession of drug paraphernalia. The Defendant also had

an extensive history of probation violations and disciplinary infractions while he was

incarcerated. Accordingly, the trial court was justified in imposing consecutive sentences

in this case.7

With respect to the Defendant‘s argument that his total effective sentence was

excessive and not the least severe measure necessary to achieve the purposes for which

the sentence was imposed, we note that the evidence at trial established that both of the

victims were beaten so severely with a roofing hatchet that they suffered depressed skull

fractures. The victims‘ home was then set on fire while the Defendant and his co-

defendants left them inside, unable to escape. Both victims died from a combination of

blunt force injuries and ―inhalation of products of combustion.‖ Ms. Marsh‘s body, when

it was recovered, was covered in third degree burns and ―charring injuries.‖ According to

Ms. Tanner‘s testimony, the Defendant and his co-defendants did this for a shotgun, some

jewelry, pain medication, and a safe, which ultimately had nothing of value in it. Given

the foregoing, we cannot conclude that the Defendant‘s total effective sentence was

excessive in light of the committed offenses. Therefore, we conclude that the trial court

did not abuse its discretion in imposing partial consecutive sentences.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of

the trial court are reversed, and this case is remanded to the trial court for a new trial

consistent with this opinion. Additionally, the judgment of the trial court with respect to

Count 19, aggravated arson, is reversed for insufficiency of the convicting evidence and

dismissed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

7

Because only one of the grounds listed in section 40-35-115(b) is needed to justify consecutive

sentencing, we need not determine whether the trial court properly concluded that the Defendant was a

dangerous offender.

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