        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs October 29, 2014

                 STATE OF TENNESSEE v. ROBERT E. ODLE

                   Appeal from the Circuit Court for Wayne County
                       No. 15236     Jim T. Hamilton, Judge


              No. M2014-00349-CCA-R3-CD - Filed November 21, 2014


Appellant, Robert E. Odle, was convicted of aggravated arson and sentenced to fifteen years
in the Tennessee Department of Correction. On appeal, he claims that he proved by clear and
convincing evidence that he was insane at the time of the offense and that, therefore, this
court should reverse his conviction. Following our careful review of the record, the
applicable law, and the briefs of the parties, we affirm the judgment of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS
and R OBERT H. M ONTGOMERY, J R.,. JJ., joined.

Claudia S. Jack, District Public Defender, Columbia, Tennessee; and Robert H. Stovall, Jr.,
Assistant District Public Defender, Pulaski, Tennessee, for the appellant, Robert E. Odle.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; T. Michel Bottoms, District Attorney General; and Joel Douglas Dicus, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                         I. Facts

        Appellant was indicted by a Wayne County grand jury for aggravated arson after he
set fire to the house of his brother, Charles Odle. Appellant admitted his involvement but
asserted the affirmative defense of insanity. The jury rejected the insanity defense and
convicted him as charged. The trial court sentenced appellant to fifteen years in the
Tennessee Department of Correction.
       At appellant’s trial, Wayne County Sheriff’s Deputy Patrick Dustin Malugent testified
that he responded to a house fire on Collinwood Highway on April 11, 2012. When he
arrived, the victim’s house was fully engulfed in flames. Deputy Malugent learned that the
victim had been inside when the fire began but escaped unharmed. Deputy Malugent did not
see appellant in the area at the time. He returned “a couple hours later” and “made contact”
with appellant at appellant’s trailer, which was next door to the victim’s house. Deputy
Malugent asked appellant if he had seen the fire, and appellant responded, “‘I set it.’” Deputy
Malugent testified that he immediately informed appellant of his constitutional rights and
transported appellant to the sheriff’s office, where appellant gave a statement. Deputy
Malugent read the statement aloud:

       It boiled down to me and my brother and my sister. Every time my mama’s
       flowers would come up, he, Charles, would cut it down[,] and we had been
       arguing about it for a long time. Today they had Sandy Newman come and
       mow the yard and I ran him off.
       ....
       [In response to being asked what he did during the fire:] I knew, he, Charles,
       was in the house and I took a hammer and started beating on the side of the
       house, and told him to get out. And I stood there to make sure he got out.
       ....
       [In response to being asked how he started the fire:] I poured gas out of a can
       on to toilet paper, on the back porch, and threw a match on it.

Appellant told Deputy Malugent that he did not intend to hurt his brother and that his reason
for setting the fire was that he was “tired of him cutting down everything that I plant.”

      Deputy Malugent testified that he had no problem communicating with appellant.
Appellant appeared to understand his questions, and he gave intelligent answers. Deputy
Malugent said that he did not feel that it was necessary to call in the mental health response
team.

       On cross-examination, Deputy Malugent said that he was not aware of previous calls
to the sheriff’s office regarding appellant. Deputy Malugent agreed that he had noticed
during appellant’s time at the jail that appellant had involuntary movements, but he said that
he could not recall whether appellant exhibited similar involuntary movements the day of the
fire. Counsel played a video recording of appellant’s arrest, taken from the dashboard
camera of a patrol car, and Deputy Malugent agreed that appellant made “strange body
movements” in the recording. He disagreed that appellant almost fell or that his speech was
slurred. Deputy Malugent said that he did not know anything about Huntington’s disease.



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        The victim testified that his house was approximately 200 feet from appellant’s trailer.
They had not communicated with each other for two years prior to the fire. On the day of the
fire, the victim heard a noise and saw appellant in his back yard. Twenty minutes later, he
heard a “funny noise” and discovered that his porch was burning. He tried to call for help,
but his telephone was not working. The victim said that he grabbed what he could and left
to find help. When he exited the house, he saw appellant standing thirty to forty feet away.

       On cross-examination, the victim testified that he believed appellant’s having
Huntington’s disease affected his mind. He said that in the few years before the fire,
appellant cut the victim’s water lines, disconnected his cable lines, and turned off his gas.

       David Ray Parham testified that the victim and appellant were his uncles. He lived
across the street from them. Mr. Parham recalled that in 2011, appellant told him that he was
going to “‘put a bullet between [the victim’s] eyes.’” When Mr. Parham said, “‘[D]on’t you
know you’ll go to prison for that,’” appellant replied, “‘Well, I’ll just burn him down then.’”
Mr. Parham agreed that appellant lived on his own and was able to care for himself at that
time.

       On cross-examination, Mr. Parham testified that he had seen appellant pointing at the
sky and talking to it. He said that he noticed appellant’s mind slipping in 2010 or 2011. Mr.
Parham stated that on the day of the fire, he thought that appellant was “[k]ind of wacko”
because appellant “ran off” someone who had come to mow his yard.

        Wilford Carlos Hamm, a special agent with the fire marshal’s bomb and arson section,
testified that the victim’s home was “totally destroyed.” He testified that he examined a
small section of wall that had been somewhat protected from the fire. The wall was more
damaged on the outside than inside, “suggest[ing] that the fire was on the outside of the
house.”

        Fannie Lou Parham, the sister of the victim and appellant, testified that she lived
across the street from her brothers. She recalled that the morning of the fire, appellant called
her and asked, “‘[W]hat in the H is going on?’”1 When she responded that someone was
coming to mow their yards, appellant said, “‘G.D. big deal,’” and hung up. Ms. Parham said
that three months to one year before the fire, appellant told the victim, “‘I’m going to kill
you; I’m going to shoot you; I’m going to knock you in the head.’” Over one year before the
fire, appellant told Ms. Parham that “he was going to catch [the victim] asleep, and burn him
up in his house.”



       1
           Ms. Parham apparently self-edited appellant’s comments.

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         On cross-examination, Ms. Parham agreed that in April 2010, she called “dispatch .
. . saying [appellant] was nuts, and that he turned the gas off.” She recalled that two to three
years prior to trial, appellant “started not walking straight[] and doing odd things.” She
agreed that these were symptoms of Huntington’s disease. Ms. Parham stated, “I think his
mind has been eaten away, because of the disease.” She recalled seeing him talking to the
sky seven or eight times.

       Following Ms. Parham’s testimony, the State rested its case. On behalf of appellant,
Ella Medley testified that she was a nurse at the Wayne County Jail and had cared for
appellant for the three months prior to trial. She said that appellant had Huntington’s disease,
which affected his motor skills. Ms. Medley said that appellant hallucinated and was very
disoriented. She explained that appellant reported seeing “bad things” and would say that
he did not “know what they’re gonna do to him.” She had heard him yell, “‘[G]et away from
me[.] [W]ho are you?’” Ms. Medley testified that appellant was in a cell by himself.

        Dr. Hilary Linder, a psychiatrist at Western Mental Health Institute (“WMHI”),
testified that prior to trial, appellant was at WMHI for a thirty-day mental evaluation. Dr.
Linder met with appellant once a week for twenty to thirty minutes each time. In evaluating
appellant, Dr. Linder received input from staff psychologists, nurses, and psychiatric
technicians who all observed appellant during his thirty-day evaluation. Dr. Linder also
noted that appellant was examined by a neurologist who confirmed that appellant had
Huntington’s disease. Dr. Linder testified that Huntington’s disease causes a person to
exhibit abnormal movements and influences a person’s thinking and behavior. He further
testified that appellant was “impulsive and very rigid in his personality and his thinking.”
Dr. Linder continued, “And he []tends to be somewhat intolerant of people and has temper
outbursts that are hard to explain on a rational basis.” Dr. Linder opined that appellant was
suffering from a severe mental defect at the time of the fire. He stated that appellant

       seemed to understand that legally, you’re not supposed to set fire to
       somebody’s house. Be he’s -- it’s a reason that, in his case, in this particular
       case, it was a necessary thing for him to do. Then he explained it, you know;
       he said, he did it because he needed for -- he calls his brother Ernie -- and he
       wanted him to go into the nursing home. And he said, you can’t reason with
       Ernie. That was the reason he set the fire. You know, it didn’t make good
       sense at all. . . . [H]e knew that it was unusual and not an every day thing to do.
       But he still thought he made the right choice.

       Dr. Suzanne Tuseth, a psychologist at WMHI, testified that as part of appellant’s
evaluation, she and others on her team conducted interviews with appellant’s family
members and other people who had come in contact with appellant, such as the arresting

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officer in this case. They also reviewed appellant’s medical records. Dr. Tuseth testified that
the information they received “seemed to support the diagnoses of personality change due
to serious mental condition[,] which was Huntington’s disease.” She further testified that
appellant was diagnosed with “Cognitive Disorder NOS.” Dr. Tuseth stated that the
evaluation team “believed that [appellant] did understand . . . the nature of his acts but[] that
he did not have full appreciation of the wrongfulness of his acts.” She explained that
appellant knew he was burning down his brother’s house but that, while “he understood that
the action itself was legally wrong,” he did not appreciate the moral wrongfulness of his
actions. Dr. Tuseth stated that appellant “had the opinion that[] what he did was wrong” but
that he justified his actions by saying that the victim needed his help. When asked whether
appellant was “capable of conforming his conduct to the law,” Dr. Tuseth replied, “Suffering
from the illness that he has, I don’t believe that he was.” She explained that “the symptoms
that go along with personality change due to Huntington’s disease [are] impulsivity, rage, and
aggression that far exceeds any known stresser.” The defense rested its case following Dr.
Tuseth’s testimony.

       The jury found appellant guilty of aggravated arson. The trial court sentenced
appellant to fifteen years in the Tennessee Department of Correction. It is from this
judgment that appellant now appeals.

                                               II. Analysis

       On appeal, appellant contends that he proved the defense of insanity by clear and
convincing evidence2 and asks this court to reverse his conviction. The State responds that
the jury appropriately rejected appellant’s defense of insanity.

       Tennessee Code Annotated section 39-11-501 sets forth the affirmative defense of
insanity:

        (a) It is an affirmative defense to prosecution that, at the time of the
        commission of the acts constituting the offense, the defendant, as a result of
        a severe mental disease or defect, was unable to appreciate the nature or
        wrongfulness of the defendant’s acts. Mental disease or defect does not
        otherwise constitute a defense. The defendant has the burden of proving the
        defense of insanity by clear and convincing evidence.


        2
          Appellant framed his appellate argument as a sufficiency of the evidence question; however, the
appellate standard of review for sufficiency is similar but not identical to the reasonableness standard
adopted by our supreme court for review of a jury’s rejection of the insanity defense. See State v. Flake, 88
S.W.3d 540, 554 (Tenn. 2002).

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       (b) As used in this section, mental disease or defect does not include any
       abnormality manifested only by repeated criminal or otherwise antisocial
       conduct.

       (c) No expert witness may testify as to whether the defendant was or was not
       insane as set forth in subsection (a). Such ultimate issue is a matter for the
       trier of fact alone.

        When a jury rejects the insanity defense, appellate courts may only reverse the jury’s
decision when, viewing the evidence in the light most favorable to the State, “no reasonable
trier of fact could have failed to find that the defendant’s insanity at the time of the offense
was established by clear and convincing evidence.” State v. Flake, 88 S.W.3d 540, 554
(Tenn. 2002). “Clear and convincing evidence means evidence in which there is no serious
or substantial doubt about the correctness of the conclusions drawn from the evidence.” Id.
at 551 (quoting State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999)). The jury
may consider lay and expert testimony, as well as evidence of the defendant’s words and
actions “at or near the time of the offense.” Id. at 554 (citations omitted). “While a jury may
not arbitrarily ignore evidence, a jury is not bound to accept the testimony of experts where
the evidence is contested.” Id. at 556. The trier of fact’s credibility determinations,
resolution of factual disputes, and weighing of the evidence will not be reevaluated by this
court. Id. at 554.

        In this case, appellant maintains that while he understood that his acts were legally
wrong, the expert testimony proved that he did not understand the moral wrongfulness of his
actions. Appellant correctly contends that he only had to prove either that he was unable to
appreciate the nature of his actions or that he was unable to appreciate the wrongfulness of
his actions. However, he has conflated “nature” and “wrongfulness” by arguing that
appreciation of the legal wrongfulness of his actions falls under the “nature” category. In this
case, Dr. Tuseth testified that appellant understood the nature of his actions — that he was
burning his brother’s house. Both Dr. Linder and Dr. Tuseth testified that appellant
understood that his actions were legally wrong but not morally wrong. However, our law
does not distinguish between legal and moral wrongfulness. See State v. Hank Wise, No.
M2012-02520-CCA-R3-CD, 2014 WL 992102, at *16 (Tenn. Crim. App. March 13, 2014),
perm. app. denied (Tenn. Sept. 19, 2014) (citing Brian Val Kelley v. State, No. M2004-
01158-CCA-R3-PC, 2005 WL 2255854, at *7 (Tenn. Crim. App. Sept. 15, 2005); State v.
Brian Val Kelley, No. M2001-00461-CCA-R3-CD, 2002 WL 927610, at *25-26 (Tenn.
Crim. App. May 7, 2002)). Thus, viewing the evidence in the light most favorable to the
State, we conclude that the trier of fact reasonably rejected appellant’s insanity defense when
appellant’s experts testified that he understood that his actions were legally wrong.
Accordingly, we affirm the judgment of the trial court.

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                                     CONCLUSION

       Based on the record, the applicable law, and the arguments of the parties, we affirm
the judgment of the trial court.




                                                  _________________________________
                                                  ROGER A. PAGE, JUDGE




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