STATE OF TENNESSEE v. DAVID OESER

12/11/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 25, 2020

STATE OF TENNESSEE v. DAVID OESER

Appeal from the Circuit Court for Rutherford County

No. 78218 David Bragg, Judge

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No. M2019-01052-CCA-R3-CD

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A Rutherford County jury convicted the Defendant, David Oeser, as charged of first degree

premediated murder, first degree felony murder, especially aggravated robbery, aggravated

burglary, and tampering with evidence. See Tenn. Code Ann. §§ 39-13-202(a)(1), (a)(2),

39-13-403, 39-14-403, 39-16-503. The trial court imposed life sentences for the

Defendant’s first degree murder convictions before merging them. It then sentenced the

Defendant to twenty years at one hundred percent for the especially aggravated robbery

conviction, five years at thirty percent for the aggravated burglary conviction, and five

years at thirty percent for the tampering with evidence conviction, with these sentences

served concurrently with one another but consecutively to the life sentence, for an effective

sentence of life plus twenty years. On appeal, the Defendant argues: (1) the evidence is

insufficient to sustain his conviction for first degree premediated murder; and (2) the trial

court abused its discretion in ordering the sentences for the especially aggravated robbery,

aggravated burglary, and tampering with evidence convictions served consecutively to his

life sentence. After carefully reviewing the record and the applicable law, we remand the

case for entry of corrected judgment forms in Counts 1 and 3 as specified in this opinion.

In all other respects, the judgments of the trial court are affirmed.

Tenn. R. App. P. 3, Appeal as of Right; Judgments of the Circuit Court Affirmed;

Case Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

H. Scott Saul, Nashville, Tennessee, for the Defendant-Appellant, David Oeser.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant

Attorney General; Jennings H. Jones, District Attorney General; and J. Paul Newman,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

This case arises from a March 31, 2017 incident in which the victim, James

Whitehead, was killed, and several items of property were stolen from his home. During

the incident, the victim was bludgeoned in the head with a sledgehammer, the victim’s

throat was cut, and the victim was stabbed in the abdomen. Following an investigation,

the Defendant was arrested for these offenses. In September 2017, a Rutherford County

grand jury indicted the Defendant for first degree premediated murder, first degree felony

murder, especially aggravated robbery, aggravated burglary, and tampering with evidence.

At trial, Leah Whitehead Graves testified that the victim in this case was her brother.

She stated that Jay Foster, the victim’s roommate, lived at the victim’s home at 338 One

Mile Lane, Smyrna, Tennessee.

Graves1 explained that, shortly before the victim’s death, the victim began keeping

large sums of money in his home because he was starting a tire business and generally paid

for the costs of this business with cash. She identified photographs of a leaf blower, a

chainsaw, and two guns that belonged to the victim. Graves said that the victim did not

keep tools at his home and routinely hired friends to do work on his property. She denied

ever seeing a Stanley brand sledgehammer on the victim’s property and asserted that if the

victim had purchased a sledgehammer, he would have bought a Wilton brand

sledgehammer because she worked for a company that makes Wilton tools. Graves said

the victim owned a fish fillet knife that he kept in a drawer in his kitchen.

Jessica Adcock, the victim’s niece, testified that she and her husband had lived with

the victim from 2013 to August 2016 and that during that time, her husband often did handy

work around the victim’s home. She said that when they moved out, her husband took his

tools, including a sledgehammer, with him. She also said that she had never observed the

victim having a sledgehammer because he was not handy and did not have tools. Adcock

identified a photograph of the victim’s leaf blower. She also identified a photograph of the

victim’s fillet knife, which he kept in a kitchen drawer, and said she knew the victim had a

rifle and shotgun, which he kept in his bedroom.

Jay Foster, the victim’s roommate, testified that he saw and talked to the victim

around 10:30 a.m. on March 31, 2017, as he got ready to go to work. As Foster left for

work, he saw the Defendant, David Oeser, arrive at the victim’s home. When Foster

returned home at 1:50 p.m., he found the victim lying on the floor “disfigured” with “a

1

We have not used titles when referring to most of the witnesses in this opinion, and we intend no

disrespect in doing so. Judge John Everett Williams believes that referring to witnesses without proper

titles is disrespectful, even though none is intended, and he would prefer that every adult witness be

identified by his or her proper title.

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knife sticking out of his stomach.” He said this knife was the fish fillet knife from victim’s

kitchen. Upon finding the victim, Foster immediately called 9-1-1 and waited in front of

the home for the police to arrive.

Foster said that he was familiar with all of the tools the victim kept at his residence

and asserted that the victim did not have a Stanley sledgehammer, or any other

sledgehammer, in his home or his garage. Foster identified photographs of a leaf blower,

chainsaw, shotgun, and rifle that belonged to the victim. He acknowledged that the victim

used drugs recreationally but said that he had never seen the victim sell drugs.

Joseph Duncan, a patrol officer with the Rutherford County Sheriff’s Department,

testified that when he arrived at the crime scene, he observed the victim lying on the floor

with serious trauma to his face and head and with a knife sticking out of his abdomen. He

noticed a substantial amount of blood on the floor, the walls, and a nearby table. Officer

Duncan exited the home and approached Jay Foster, who told him that he had come home,

unloaded his pressure washing equipment, removed equipment to seal the sidewalk, and

then gone inside the home where he discovered the victim. Officer Duncan noted that

Foster’s keys were in the lock, his shoes were outside the door, and his concrete sealer and

applicators were by the sidewalk he was going to seal, which corroborated Foster’s

statements to him.

Richard Brinkley, a detective and crime scene investigator with the Rutherford

County Sheriff’s Department, testified that he took photographs of and collected evidence

from the crime scene. Detective Brinkley noticed several “tool marks,” represented by

“linear furrows,” on the wall near the victim that appeared to be caused by “something

being swung up and down.” He said that these tool marks were consistent with being struck

by a sledgehammer. Detective Brinkley also noted that the table near the victim had a cell

phone, a leather sheath used to cover the knife with which the victim had been stabbed,

some pooling of blood, and “two tool marks” on it that were “circular” and were consistent

with the table being struck with a sledgehammer. He said that because these tool marks

had blood stains around them, he believed the weapon that made these marks had been

used to kill the victim. He noticed that there was a large amount of blood spatter at the

scene, which was indicative of trauma to the body. He also said that a set of scales were

found on the floor next to the victim’s body. In addition, he observed blood stains in the

master bedroom on the carpet, the bed, a baseball card, and a ball cap found in the closet.

Detective Brinkley said he later assisted several officers in apprehending the

Defendant, who had been identified as a suspect in the victim’s death. After the Defendant

was taken into custody, he and other officers executed a search warrant on the Defendant’s

home, where a chainsaw and a leaf blower were found in a shed on the Defendant’s

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property. In addition, blood stains were found in the Defendant’s truck on the driver’s door

handle and the passenger’s door.

Kyle Norrod, a detective with the Rutherford County Sheriff’s Department, testified

that he was assigned to investigate this case. He arrived at the victim’s home at 2:30 or

2:40 p.m. on March 31, 2017, and promptly spoke to paramedics, the first responding

officers, and Jay Foster, who had found the victim. Detective Norwood entered the kitchen

and observed blood stains on the floor, the wall, and the ceiling. He also noticed “four

district strikes from an object” close to the bottom of the wall, which indicated that

whatever was being struck “was already on the floor.”

After learning that the victim had surveillance equipment installed outside his home,

Detective Norrod obtained the video recordings from this equipment, which showed that a

truck and a person wearing gloves and a yellow jacket, later identified as the Defendant,

was believed to have committed the crimes at the victim’s home. Detective Norrod was

able to obtain photographs from the video recordings, which he showed to the victim’s

friends, Michael Sullivan and Steve Pigue, who both identified the Defendant. Over the

course of the investigation, Detective Norrod learned that a chainsaw, a leaf blower,

baseball cards, a shotgun, and a .22 rifle had been taken from the victim’s residence. He

said that the gloves and the yellow jacket the Defendant was wearing on the surveillance

video recording were never recovered.

Detective Norrod then obtained a warrant for the Defendant’s arrest, and the

Defendant was taken into custody. In the early morning hours of April 2, 2017, Detective

Norrod provided the Defendant with his Miranda warnings, both in writing and verbally,

and the Defendant signed a waiver of rights form and affirmed that he was not under the

influence of any drugs prior to the interview. Detective Norrod asserted that the Defendant

responded appropriately to questions asked of him and that there was nothing unusual about

the Defendant’s physical or mental conduct during the interview. He said the Defendant’s

interview was audio and video recorded.

Detective Norrod said that during the interview, the Defendant initially

acknowledged that he had been at the victim’s home but denied knowing that anything had

happened to the victim and denied taking anything from the victim’s home. The Defendant

also claimed that he called and texted the victim after he left the victim’s home, which

Detective Norwood confirmed. Later, the Defendant admitted that he took the victim’s

shotgun but claimed that he never went into the victim’s closet. He also denied wearing a

hat into the victim’s house. During the first fifty-four minutes of the interview, the

Defendant never indicated that he knew the victim was dead and said he did not know that

the victim’s home had surveillance video cameras. The Defendant admitted he took a

shotgun from the victim’s house but claimed that he did not know the victim was dead.

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During the next thirty-two minutes of the interview, the Defendant admitted that he

had initially lied about what happened with the victim. Instead, the Defendant asserted that

the victim and Jay Foster had been arguing when he arrived at the victim’s home and that

a short time later Foster came into the home and hit the victim in the head with a hammer

two or three times, which prompted the Defendant to run to the bedroom to try to get a

shotgun. The Defendant said that when he came out of the bedroom, the victim was still

alive but making noises, and he never called the police because he left to try to find Foster.

During the last portion of the interview, the Defendant admitted that he had hit the

victim in the head with a Stanley mini sledgehammer because the victim was angry with

him for bringing only $60 when he was supposed to have $619 and because the victim

called him a name, which caused him to see “red.” When one of the detectives asked him

about the knife that was found at the scene, the Defendant claimed the victim had pulled a

knife on him and held it to his head before he hit the victim with the sledgehammer. The

Defendant said that after he hit the victim with the sledgehammer, the victim began making

gurgling noises, which prompted him to stab the victim in the stomach to stop him from

making those noises. The Defendant said he was the only person present at the victim’s

house when this incident occurred. The Defendant never explained where the

sledgehammer came from or what he did with it after hitting the victim. The Defendant

also never said anything about cutting the victim’s throat. The Defendant’s entire

interview, which corroborated Detective Norrod’s testimony about it, was played for the

jury and entered into evidence.

Detective Norrod stated that he believed the Defendant had placed the

sledgehammer in his father-in-law’s tool box when he visited him the day after the victim’s

murder. He said that because the Defendant had been incarcerated since his arrest,

someone else had to have taken the sledgehammer from the father-in-law’s toolbox back

to the Defendant’s residence, where it was found by Tracy Byrd, the Defendant’s sister-in-

law, during home renovations.

Detective Norrod said that everything in the victim’s pockets went with the victim

to the Medical Examiner’s office and that he later learned the victim had a few hundred

dollars in his pockets. Detective Norrod acknowledged that a set of digital scales was

found in the victim’s home and that such scales were sometimes used to weigh small

amounts of drugs. He said that although the victim’s family had disclosed that the victim

often kept large amounts of money in his home, no large amounts of cash were found at

the victim’s house or the Defendant’s house. Detective Norrod acknowledged that this

“wasn’t a typical robbery, burglary type situation” because the only areas of the house that

the perpetrator had obviously entered were the kitchen, dining room, master bedroom, and

possibly the master bathroom. Nevertheless, he asserted that a robbery, burglary, and

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murder had been committed. He also acknowledged that the perpetrator had not ransacked

the victim’s luxury sedan or the outbuilding on the victim’s property. He affirmed that the

Stanley sledgehammer that was recovered was consistent with the tool marks on the wall

of the victim’s home.

Detective Norrod stated that the surveillance video established that the Defendant

left the victim’s home just after 11:00 a.m. and that the victim’s body was found just before

2:00 p.m. on March 31, 2017. He also stated that the Defendant’s wife did not see him

until she returned from work around 6:00 p.m. that day, which meant that the Defendant

would have had the opportunity to dispose of or hide evidence from 11:00 a.m. until 6:00

p.m. He also said that the Defendant would have had time to hide the rifle and shotgun

behind a wall and to conceal the chainsaw and leaf blower in an outbuilding on his property.

Detective Norrod asserted that although the Defendant never admitted to taking the leaf

blower, the surveillance video showed that he did. He also said that the Stanley

sledgehammer that was recovered matched the description of the one provided by the

Defendant himself.

Tracy Byrd, the Defendant’s sister-in-law, testified that on August 17, 2018, she

found in the living room of the Defendant’s home a Stanley yellow-handled mini

sledgehammer in a plastic bin. She said that she had never seen that sledgehammer prior

to that day and that upon finding it, she immediately notified law enforcement, who

collected it as evidence. She said that sometime later, her sister, the Defendant’s wife,

notified her that she had found two guns behind drywall in the Defendant’s work room.

Stacy Oeser, the Defendant’s wife, testified that although she was still legally

married to the Defendant, she intended to divorce him. Mrs. Oeser2 said that on the

morning of March 31, 2017, the Defendant told her he was going to pay the electric bill

and visit a friend in Nolensville. When she returned from work around 6:00 p.m. that

evening, the Defendant was home, had just showered, and “seemed to be in a good mood.”

Later that night, they visited her daughter and grandchildren, and the Defendant “seemed

fine” while playing with his grandchildren. On April 1, 2017, Mrs. Oeser said that they

went to her parents’ home, to her son’s home in Goodlettsville, and finally to Nashville

and that the Defendant also “seemed to be fine” and “[i]nteracted with [her] parents and

[her] family.” As they were returning home around midnight on April 1, 2017, officers

pulled over their truck and arrested the Defendant. Shortly thereafter, officers executed a

search warrant on the home she shared with the Defendant. Mrs. Oeser said that up until

the moment of the Defendant’s arrest, he never acted anything other than normal.

2

Although we have not used titles when referring to most other witnesses, we have referred to the

Defendant’s wife as Mrs. Oeser, to distinguish her from the Defendant, who shares the same last name.

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Mrs. Oeser stated that on June 13, 2017, the Defendant told her during a jail visit

that he had a “present” for her behind the pegboard in his office. She said she looked there

but was unable to find anything. Later, the Defendant instructed her to look again, and

when she unscrewed the screws in the drywall, she found two guns inside the wall and

immediately notified the police about them. Mrs. Oeser noted that her sister had found the

Stanley sledgehammer inside the home she had shared with the Defendant. She confirmed

that this sledgehammer, which was photographed and collected by the police, belonged to

the Defendant.

Mrs. Oeser asserted that the Defendant had told her several different stories about

what happened with the victim on March 31, 2017. First, the Defendant, during a jail visit,

stated that the victim attacked him and that he was defending himself. Second, the

Defendant told her “maybe the roommate had come back and had done that [to the victim].”

Mrs. Oeser said the Defendant also sent her a letter after his arrest, claiming that he

went to the victim’s house to buy some cocaine for someone else, and when he got there,

he saw Jay Foster and the victim arguing outside. He claimed the victim had told him that

he could borrow his leaf blower and chainsaw to do some work on another property. The

Defendant said that after the victim got the cocaine from his bedroom, they went to the

kitchen, and Jay Foster came in angry and slashed the victim’s neck, and as the Defendant

tried to stop him, Foster stabbed the victim with the knife in the stomach. The Defendant

said he ran to the victim’s bedroom to get the victim’s guns to defend himself, and when

he heard Foster leave the victim’s home, he went back to the kitchen, where he saw the

victim slumped over the kitchen table making noises. The Defendant claimed he was

scared Foster was going to come back and get him, too, so he went to his truck and loaded

the chainsaw, leaf blower, and guns into it and left.

Mrs. Oeser said that in a second letter to her, the Defendant claimed that he put on

gloves because the chainsaw was greasy and that he loaded his truck with the chainsaw,

leaf blower, and guns while wearing these gloves. He also claimed that if he had done

something wrong, then he would have destroyed the recordings from the video cameras.

He again blamed Jay Foster for the victim’s death.

Finally, Mrs. Oeser stated that during a video jail visitation that pre-dated the two

letters, the Defendant told her he had an altercation with the victim over some money and

that the victim had “come at him with a knife” and he had deflected it, which caused the

victim to stab himself. She said the Defendant then said that he picked up the first thing

he saw on the table, which was the sledgehammer, and hit the victim with it.

Lisa Burgee, a Special Agent Forensic Scientist for the Tennessee Bureau of

Investigation and an expert in the areas of serology and deoxyribonucleic acid (DNA),

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testified that the blood stain on the baseball cap collected from the victim’s closet had a

DNA profile that was a mixture of two individuals, with the major contributor matching

the victim and the minor contributor deemed inconclusive. She also testified that the inside

headband of this baseball cap had a DNA profile that was a mixture of two individuals,

with the major contributor matching the Defendant and the minor contributor deemed

inconclusive. Agent Burgee stated that the probability of randomly selecting an unrelated

individual with the same DNA profile as that of the stain and that of the inside headband

of the baseball cap was one in a number greater than the current world population for

African American, Caucasian, and Southwestern Hispanic populations. In addition, Agent

Burgee stated that the DNA profiles of the blood stains from the driver’s door and

passenger’s door of the Defendant’s truck matched the victim’s DNA, and “the statistic

was above the world population.”

Dr. Miguel Laboy, a forensic pathologist for the Middle Tennessee Regional

Forensic Center and an expert in anatomical and forensic pathology, testified that he

performed the victim’s autopsy. He stated that the victim sustained blunt trauma to his

head, multiple lacerations to his scalp and face, multiple fractures to his skull, contusions

and hemorrhages to his brain, a stab wound to his neck, a cut blood vessel near his carotid

artery, a stab wound to his abdomen, and abrasions to his left upper extremity. Dr. Laboy

concluded that the victim’s cause of death was “blunt force trauma to [the] head and sharp

force injuries.” He also concluded that the victim’s manner of death was homicide. He

asserted that the victim had been hit “at least seven times” in the head. He opined that

while the stab wounds to the victim’s neck occurred at or near the time of the victim’s

death, the stab wound to the victim’s abdomen most likely occurred after the victim’s

death. Dr. Laboy confirmed that the toxicology report showed the victim had cocaine

metabolites and cocaethylene in his system at the time of his death. He said that while he

could not determine what affect these substances would have had on the victim’s

demeanor, the substances were present at a low level.

The Defendant waived his right to testify and offered no additional proof.

Following the conclusion of proof at trial, the jury convicted the Defendant as

charged of first degree premeditated murder, first degree felony murder, especially

aggravated robbery, aggravated burglary, and tampering with evidence. The trial court

merged the first degree murder convictions and imposed an effective sentence of life

imprisonment plus twenty years. The Defendant timely filed a motion for new trial, which

the trial court denied. The Defendant then timely filed a notice of appeal.

ANALYSIS

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I. Sufficiency of the Evidence. The Defendant contends that “there was

insufficient proof to find the killing of [the victim] to be premeditated and intentional.”

Specifically, he argues that the evidence did not show that he was “sufficiently free from

excitement and passion as to be capable of premeditation.” While the Defendant admits

that he struck the victim with a hammer, he claims he did this only after the victim called

him a name and he saw “red.” He also asserts that the victim pulled a knife on him and

held it to his head before he hit the victim. Lastly, he maintains that he did not procure the

hammer prior to the killing and that he made no preparations to conceal the killing before

it occurred, which he claims shows “a lack of premeditation.” The State responds that it

presented “ample evidence upon which the jury could determine that the murder was

premeditated and intentional,” including proof that the Defendant brought the

sledgehammer to the victim’s home, that the Defendant bludgeoned and stabbed the victim

to death before stealing several valuable items and calmly loading them into his truck, that

the Defendant concealed evidence of the murder, and that the Defendant went out with his

wife the night the murder as if nothing had happened. After reviewing the record in this

case, we agree with the State that the evidence is sufficient to sustain the Defendant’s

conviction for first degree premeditated murder.

“Because a verdict of guilt removes the presumption of innocence and raises a

presumption of guilt, the criminal defendant bears the burden on appeal of showing that

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).

“Appellate courts evaluating the sufficiency of the convicting evidence must determine

‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court

evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn from that

evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318

S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 691

(Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of review for

sufficiency of the evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting

Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of

the witnesses, determine the weight given to witnesses’ testimony, and reconcile all

conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing

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Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury

determines the weight to be given to circumstantial evidence, and the inferences to be

drawn from this evidence and the extent to which the circumstances are consistent with

guilt and inconsistent with innocence, are questions primarily for the jury. Dorantes, 331

S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When considering

the sufficiency of the evidence, this court “neither re-weighs the evidence nor substitutes

its inferences for those drawn by the jury.” Wagner, 382 S.W.3d at 297 (citing State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).

First degree murder, as applicable here, is the premeditated and intentional killing

of another person. Tenn. Code Ann. § 39-13-202(a)(1). “A person acts intentionally when

it is the person’s conscious objective or desire to cause the death of the alleged victim.”

See State v. Page, 81 S.W.3d 781, 790 (Tenn. Crim. App. 2002) (Appendix); 7 Tenn. Prac.

Pattern Jury Instr. T.P.I.—Crim. 7.01. Premeditation is defined as “an act done after the

exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d). This section

further defines premeditation:

“Premeditation” means that the intent to kill must have been formed prior to

the act itself. It is not necessary that the purpose to kill pre-exist in the mind

of the accused for any definite period of time. The mental state of the accused

at the time the accused allegedly decided to kill must be carefully considered

in order to determine whether the accused was sufficiently free from

excitement and passion as to be capable of premeditation.

Id.

The existence of premeditation is a question of fact for the jury to determine and

may be inferred from the circumstances surrounding the offense. State v. Clayton, 535

S.W.3d 829, 845 (Tenn. 2017) (citing State v. Dotson, 450 S.W.3d 1, 86 (Tenn. 2014); State

v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003)). “Proof of premeditation may be

supported by either direct or circumstantial evidence.” Id. (citing State v. Brown, 836

S.W.2d 530, 541 (Tenn. 1992)). Factors that may support the existence of premeditation

include but are not limited to the use of a deadly weapon upon an unarmed victim, the

particular cruelty of the killing, the infliction of multiple wounds, declarations by the

defendant of an intent to kill, lack of provocation by the victim, failure to aid or assist the

victim, evidence of procurement of a weapon, preparations before the killing for

concealment of the crime, destruction and secretion of evidence of the killing, and calmness

after the killing. State v. Kiser, 284 S.W.3d 227, 268 (Tenn. 2009); State v. Leach, 148

S.W.3d 42, 53-54 (Tenn. 2004); Davidson, 121 S.W.3d at 615; Bland, 958 S.W.2d at 660.

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A jury may also infer premeditation from any planning activity by the defendant before the

killing, from evidence concerning the defendant’s motive, and from proof regarding the

nature of the killing. State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995).

Methods of killing that require more time, effort, and intimate contact than the pulling of a

trigger on a gun are more consistent with premeditation. State v. Adams, 405 S.W.3d 641,

663 (Tenn. 2013).

Viewing the evidence in the light most favorable to the State, we conclude that a

rational jury could have found that the Defendant’s killing of the victim was premeditated

and intentional. The victim’s roommate, Jay Foster, observed the Defendant come to the

victim’s home the day the victim died. Surveillance video recordings showed that the

Defendant entered the victim’s home and left several minutes later, wearing gloves and

carrying a chainsaw, a leaf blower, two guns, a lockbox, and a suitcase to his truck.

The Defendant, after providing various stories concerning his actions the day of the

victim’s death, eventually admitted during his interview that he hit the victim in the head

with a Stanley mini sledgehammer while he and the victim were alone in the victim’s home.

The Defendant said that after he hit the victim with the sledgehammer, the victim made

gurgling noises, which prompted him to stab the victim in the stomach to prevent him from

continuing to make these noises. The Defendant’s statements during his interview also

show that he fled the crime scene without contacting law enforcement and without

attempting to render aid to the victim.

Although the Defendant acknowledged hitting the victim with the sledgehammer,

he never explained where the sledgehammer came from or what he did with it after hitting

the victim. Leah Whitehead Graves, Jessica Adcock, and Jay Foster all testified that the

victim did not own a sledgehammer. The surveillance videos taken from the outside of the

victim’s home show that the Defendant was carrying something very heavy in the pocket

of his jacket when he entered the victim’s home. Because the evidence indicates that the

Defendant brought one of the murder weapons with him to the scene, this is also indicative

of premeditation.

In addition, the brutality of the victim’s death strongly supports a finding of

premeditation. The proof showed that the Defendant hit the victim’s head several times

with a sledgehammer before slashing the victim’s throat and stabbing the victim in the

abdomen. Officer Joseph Duncan testified the victim sustained serious trauma to his face

and had a knife sticking out of his abdomen. Both he and Detective Norrod noted the

substantial amount of blood in the kitchen near the victim. Dr. Laboy testified that the

victim’s cause of death was “blunt force trauma to [the] head and sharp force injuries.” He

asserted that the victim had been hit “at least seven times” in the head. He also stated that

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while the stab wound to the victim’s neck occurred at or near the time of death, the stab

wound to the victim’s abdomen most likely occurred after the victim’s death.

Moreover, the Defendant’s destruction and secretion of evidence of the killing

supports the existence of premeditation. Tracy Byrd, the Defendant’s sister-in-law,

testified that on August 17, 2018, she found a Stanley sledgehammer in a plastic bin in the

Defendant’s home, and she immediately contacted law enforcement. Detective Norrod

stated his belief that the Defendant had placed this sledgehammer in his father in law’s

toolbox when he visited him the day after the victim’s death and that someone else had

moved the sledgehammer from the father-in-law’s toolbox back to the Defendant’s home,

where home renovations were taking place. Although Leah Whitehead Graves testified

that the victim often kept large amounts of cash in his house, no cash was found in the

victim’s home after his murder. Shortly after the Defendant’s arrest, the leaf blower and

chainsaw that the Defendant had taken from the victim were found in the Defendant’s

storage barn. Still later, the Defendant told his wife to search behind a wall in their home,

where she found the shotgun and rifle that had been taken from the victim. The clothes the

Defendant was wearing at the time of the killing were never found.

Lastly, the Defendant’s calm demeanor following the murder also indicates that he

acted with premeditation. The video surveillance at the victim’s home shows the

Defendant serenely loading the guns, a lockbox, a suitcase, a leaf blower, and a chainsaw

into his truck after the victim’s death. Stacy Oeser, the Defendant’s wife, testified that

when she got home the afternoon of March 31, 2017, the Defendant had showered and

“seemed to be in a good mood.” She said they visited her daughter and grandchildren, and

the Defendant “seemed fine[.]” The next day, she and the Defendant visited her parent’s

home and her son’s home, and the Defendant “seemed to be fine” when interacting with

her family. Mrs. Oeser said that up until the Defendant’s arrest, he never acted anything

other than normal.

The jury, after hearing all the proof in this case, rejected the theories that the

Defendant acted in self-defense or witnessed a murder committed by someone else. We

will not second-guess the jury’s determination regarding the credibility of witnesses or the

weight afforded to the evidence. Given the overwhelming proof that the victim’s killing

was premeditated and intentional, we conclude that the evidence is sufficient to sustain the

Defendant’s conviction for first degree premeditated murder.3

3

Although not argued by the Defendant on appeal, we also conclude that the evidence is sufficient

to sustain his conviction for first degree felony murder. As relevant in this case, felony murder is “[a]

killing of another committed in the perpetration of or attempt to perpetrate any . . . robbery[.]” Tenn. Code

Ann. § 39-13-202(a)(2). “A killing that precedes, coincides with, or follows the commission of an

underlying felony will be considered ‘in the perpetration of’ the underlying felony, so long as there is a

connection in time, place, and continuity of action.” State v. Wagner, 382 S.W.3d 289, 299 (Tenn. 2012)

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II. Consecutive Sentencing. The Defendant also argues that the trial court abused

its discretion in ordering the sentences for his especially aggravated robbery, aggravated

burglary, and tampering with evidence convictions served consecutively to his life sentence

for first degree murder. Although the Defendant acknowledges that his convictions are

serious offenses, he asserts that he has no prior criminal history. He also contends that he

never intended to kill the victim, that he only went to the victim’s home to “borrow some

tools and to pick up a small amount of cocaine for a mutual acquaintance,” and that he

“reacted to the victim’s actions[,] which led to the tragic outcome.” Finally, he maintains

that the trial court, in determining that he was a dangerous offender for the purpose of

consecutive sentencing, failed to make the additional findings required by State v.

Wilkerson, 905 S.W.2d 933 (Tenn. 1995). He claims that just because he was convicted

of two or more dangerous crimes does not mean that he is automatically a dangerous

offender subject to consecutive sentencing.” See id. at 938. The State responds that the

trial court did not abuse its discretion in imposing consecutive sentencing in this case. We

agree with the State.

At the Defendant’s sentencing hearing for his convictions for especially aggravated

robbery, aggravated burglary, and tampering with evidence, the State entered the

presentence investigation report into evidence before presenting testimony from the

victim’s sister, the victim’s father, and the victim’s ex-wife. The Defendant presented no

proof but read a lengthy statement of allocution, wherein he claimed that the victim thrust

the fillet knife at his left eye, which caused him to grab a sledgehammer from the table and

swing “blindly” at the victim before running to the victim’s closet and attempting to load

the victim’s two guns. The Defendant said he could hear noises coming from the kitchen,

so he returned to the kitchen with one of the guns in his hands, and the victim continued to

make noises, which he took as a threat. He said he found the fillet knife on the table and

ran it across the victim’s neck twice and then stabbed the victim in the stomach. He claimed

that he was “scared and threatened” during the incident and that he “reacted.” The

Defendant insisted that he originally went to the victim’s home to borrow the victim’s

(citing State v. Pierce, 23 S.W.3d 289, 294-97 (Tenn. 2000); State v. Buggs, 995 S.W.2d 102, 106 (Tenn.

1999)). There should also be a causal connection between the killing and the underlying felony. Buggs,

995 S.W.3d at 106 (citing Farmer v. State, 296 S.W.2d 879, 884 (Tenn. 1956); State v. Severs, 759 S.W.2d

935, 938 (Tenn. Crim. App. 1988)). In a felony murder case, the “intent to commit the underlying felony

must exist prior to or concurrent with the commission of the act causing the death of the victim.” Id. at

107. Moreover, “a jury may reasonably infer from a defendant’s actions immediately after a killing that

the defendant had the intent to commit the felony prior to, or concurrent with, the killing.” Id. at 108 (citing

State v. Addison, 973 S.W.2d 260, 266 (Tenn. Crim. App. 1997); State v. Johnson, 661 S.W.2d 854, 861

(Tenn. 1983); State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)). Because a rational jury could

have inferred from the proof presented at trial that the Defendant had the intent to commit the robbery prior

to, or concurrent with, the killing of the victim, we conclude that the evidence is sufficient to sustain the

Defendant’s conviction for first degree felony murder.

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chainsaw and leaf blower and to pick up a gram of cocaine for a friend and that he never

intended to rob the victim. The Defendant then announced, “And to the [victim’s] family,

all of you, I apologize for what I had to do. But again, we would not be here if [the victim]

had not attacked me.”

The trial court determined that the Defendant was a Range I, standard offender,

though it recognized that the Defendant’s sentence for especially aggravated robbery would

be served at one hundred percent release eligibility pursuant to Code section 40-35-501(i).

The trial court then applied three enhancement factors to the Defendant’s aggravated

burglary conviction. See Tenn. Code Ann. §§ 40-35-114(5), -114(6), -114(9). The trial

court found that no mitigating factors applied. See id. § 40-35-113.

As to whether the sentences for the especially aggravated robbery, aggravated

burglary, and tampering with evidence convictions would be served concurrently or

consecutively to one another and to the Defendant’s life sentence, the trial court found that

“the Defendant was a dangerous offender whose behavior indicates little or no regard for

human life, and no hesitation about committing a crime in which the risk to human life is

high.” See id. § 40-35-115(b)(4). In support of its determination that the Defendant was a

“dangerous offender,” the trial court made the following findings:

And all three of the following factors apply. That the circumstances

surrounding the commission of the offense are aggravated. The Court notes

the State’s statement that [the Defendant’s allocution] was the sixth story the

State has heard as to how this offense occurred.

This Court spent a considerable amount of time going over the

considerable amount of discovery provided in the case prior to trial and heard

numerous explanations by [the Defendant] in an attempt to excuse his

behavior, and at some points denying what the video evidence obviously

showed.

That he went into the house. That the only other person there left—

and that while he was in the house, he committed a brutal crime to such an

extent that the person who found [the victim] was unable to render aid

because he couldn’t tell what part of his body he needed to render aid to.

And not content with six or seven blows from a hammer to [the

victim’s] head, [the Defendant] used a fillet knife and sliced [the victim’s]

throat and . . . perpetrated other stabbing wounds to [the victim]. Some of

those were inflicted after the point that [the victim], according to the medical

examiner, was deceased.

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And at one point [the Defendant] said there were some noises [coming

from the victim], and I wanted to stop the noise. It was a gruesome, gruesome

crime.

Further, the Court finds confinement for an extended period of time is

necessary to protect society from the Defendant’s unwillingness to lead a

productive life, and the Defendant’s resort to criminal activity in furtherance

of an anti-societal lifestyle.

[The Defendant] presents himself as someone who is trained and

skilled and highly employable. Yet, he was dependent on his wife’s income

at the time. He, himself, was spending his time trying to get meds. And then

in furtherance of drug activity, visiting people, collecting drugs, making

payments for drugs in exchange to deliver to those drugs to other people.

Finally, the Court finds the aggregate length of the sentences

reasonably relate to the offenses for which the Defendant stands convicted.

The Court finds an extended sentence is necessary to protect the

public from further criminal conduct by the Defendant, and that consecutive

sentences reasonably relate to the severity of the offenses committed.

The Court is still somewhat shocked that after all that occurred, [the

Defendant] took the time to casually load guns in the back of his vehicle, to

go back into the curtilage of [the victim’s] home, pick up other items, load

them in his vehicle, drive away, go to his home, secure those items where

they couldn’t be readily located to the extent that he hid guns behind the wall

and closed them in so that even after he told his wife one time to go look, she

couldn’t find them.

Regarding the Defendant’s criminal history, the trial court recognized that the Defendant

had “not been convicted or charged except for some crimes . . . in Wilson County that

apparently nobody can find a record of as to how they were resolved.” The court added,

“[The Defendant] did have a couple of other minor criminal run-in’s [sic]. However, based

on his own statements, he’s been involved in drug traffic[king], continued to be in drug

traffic[king].”

The Court then sentenced the Defendant to twenty years at one hundred percent for

the especially aggravated robbery conviction, five years at thirty percent for the aggravated

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burglary conviction, and five years at thirty percent for the tampering with evidence

conviction, with these sentences served concurrently with one another but consecutively to

the life sentence, for an effective sentence of life plus twenty years at one hundred percent.

In Pollard, the Tennessee Supreme Court held that “the abuse of discretion standard,

accompanied by a presumption of reasonableness, applies to consecutive sentencing

determinations.” State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013); see State v. Bise,

380 S.W.3d 682,708 (Tenn. 2012); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

The court explained that “the presumption of reasonableness . . . giv[es] 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)[.]” Pollard, 432 S.W.3d at 861. It

reiterated that “[a]ny one of these grounds is a sufficient basis for the imposition of

consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn.

2013)). “So long as a trial court properly articulates reasons for ordering consecutive

sentences, thereby providing a basis for meaningful appellate review, the sentences will be

presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Id. (citing

Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705). When imposing consecutive

sentences, the court must still consider the general sentencing principles that each sentence

imposed shall be “justly deserved in relation to the seriousness of the offense,” “no greater

than that deserved for the offense committed,” and “the least severe measure necessary to

achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. §§ 40-35-

102(1), -103(2), -103(4); State v. Imfield, 70 S.W.3d 698, 708 (Tenn. 2002).

Here, the trial court imposed consecutive sentencing after finding that the Defendant

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. See Tenn.

Code Ann. § 40-35-115(b)(4). The Pollard court explained that two additional findings

must be made when applying this dangerous offender classification:

“Proof that an offender’s 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, is proof that the offender is a dangerous offender, but it may not

be sufficient to sustain consecutive sentences. Every offender convicted of

two or more dangerous crimes is not a dangerous offender subject to

consecutive sentences; consequently, the provisions of [s]ection 40-35-115

cannot be read in isolation from the other provisions of the Act. The proof

must also establish that the terms imposed are reasonably related to the

severity of the offenses committed and are necessary in order to protect the

public from further criminal acts by the offender. In addition, the Sentencing

Reform Act [of 1989] requires the application of the sentencing principles

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set forth in the Act applicable in all cases. The Act requires a principled

justification for every sentence, including, of course, consecutive sentences.”

Pollard, 432 S.W.3d at 863 (alternation and emphasis in original) (quoting Wilkerson, 905

S.W.2d at 938). Therefore, when imposing consecutive sentences pursuant to the

dangerous offender classification, the trial court must make specific findings that that the

aggregate sentence is “reasonably related to the severity of the offenses committed” and

“necessary in order to protect the public from further criminal acts.” Id.; State v. Lane, 3

S.W.3d 456, 461 (Tenn. 1999) (citing Wilkerson, 905 S.W.2d at 939). Unlike the other six

subsections, the trial court must make additional findings for the dangerous offender

classification because it is “the most subjective and hardest to apply.” Lane, 3 S.W.3d at

461.

In this case, the trial court determined that the aggregate sentence was reasonably

related to the severity of the offenses committed. The court noted that the Defendant had

committed a “gruesome” and “brutal crime” that consisted not only of “six or seven blows

from a hammer to [the victim’s] head,” but also the use of “a fillet knife” to “slice[] [the

victim’s] throat” and perpetrate “other stabbing wounds to [the victim].” The court also

recognized that the Defendant inflicted some of these stabbing wounds after the victim was

deceased. In addition, the trial court asserted that the Defendant had told numerous stories

as to how this offense had occurred, including the one in his statement of allocution; had

repeatedly attempted to excuse his behavior; and had denied what the video evidence in

this case clearly showed.

The trial court also found that the aggregate sentence was necessary in order to

protect the public from further criminal acts by the Defendant. The court specifically noted

the Defendant’s “unwillingness to lead a productive life” and his decision to “resort to

criminal activity in furtherance of an anti-societal lifestyle.” It recognized that although

the Defendant, an engineer, was highly skilled and employable, he was dependent on his

wife’s income and spent his time obtaining prescription medications and trafficking illegal

drugs.

The trial court’s findings regarding the dangerous offender classification are fully

supported by the record. Although the Defendant contends that the trial court erred in

failing to consider his lack of criminal history, the record shows that the trial court

considered his criminal history and then determined that the Defendant, by his own

admission, had been actively engaged in drug trafficking. Moreover, while the Defendant

contends that he killed the victim in self-defense, the trial court noted that the evidence of

premeditation was overwhelming. Finally, although the Defendant argues that the trial

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court failed to make the additional findings required by State v. Wilkerson, 905 S.W.2d

933 (Tenn. 1995), the record shows that the trial court provided extensive, detailed findings

regarding the Wilkerson factors. Accordingly, we conclude that the trial court did not

abuse its discretion in ordering that the Defendant’s sentences for his especially aggravated

robbery, aggravated burglary, and tampering with evidence convictions be served

consecutively to his life sentence for first degree murder.

As a final note, we detect some clerical errors in the judgment forms that require

correction. Here, the transcripts show that the trial court merged Count 1, the conviction

for first degree premeditated murder, and Count 3, the conviction for first degree felony

murder, but neglected to determine which conviction would be the greater or surviving

conviction. In addition, the two judgment forms entered for these counts state only that

“Counts 1 & 3 merge.” In a case such as this one, when two convictions merge, it is proper

for the trial court to determine which conviction is the greater or surviving conviction. See

State v. Berry, 503 S.W.3d 360, 364 (Tenn. 2015) (order for publication summarily

granting the application of the defendant under Rule 11 of the Tennessee Rules of

Appellate Procedure and reversing a portion of the judgment of the Tennessee Court of

Criminal Appeals) (“Additionally, the judgment document should indicate in the ‘Special

Conditions’ box that the conviction merges with the greater conviction. To avoid

confusion, the merger also should be noted in the ‘Special Conditions’ box on the uniform

judgment document for the greater or surviving conviction.”). Therefore, we remand this

case to the trial court for entry of corrected judgment forms in Count 1 and Count 3. On

remand, the trial court should once again impose separate sentences for the convictions in

Count 1 and Count 3, should place these sentences on separate judgment forms, and should

note in the “Special Conditions” box on each judgment form whether Count 1 or Count 3

is the greater or surviving conviction following merger. See id.

CONCLUSION

We remand this case for entry of corrected judgment forms in Counts 1 and 3 as

specified in this opinion, but in all other respects, the judgments of the trial court are

affirmed.

____________________________________

CAMILLE R. MCMULLEN, JUDGE

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