         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   August 22, 2000 Session

           STATE OF TENNESSEE v. PAUL ANDREW THOMPSON

                     Appeal from the Criminal Court for Hancock County
                            No. 2194    James E. Beckner, Judge



                                 No. E2000-01224-CCA-R3-CD
                                       October 12, 2000

The defendant appeals his conviction for first degree murder and sentence of life imprisonment
without parole, contending (1) that the evidence was insufficient to establish premeditation, (2) that
the testimony of Kimberly Johnson, the victim’s ex-stepdaughter, was improperly excluded, and (3)
that the evidence was insufficient to establish the aggravating circumstance of mutilation of the body.
We affirm the defendant’s conviction and sentence.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT
W. WEDEMEYER , JJ., joined.

Douglas A. Trant, Knoxville, Tennessee, attorney for appellant, Paul Andrew Thompson.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; C.
Berkeley Bell, Jr., District Attorney General; and G. Douglas Godbee, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

         The defendant, Paul Andrew Thompson, appeals as of right his conviction by a jury for first
degree murder, for which the jury sentenced him to life imprisonment without the possibility of
parole. The defendant contends (1) that the evidence was insufficient to establish premeditation, (2)
that the testimony of Kimberly Johnson, the victim’s ex-stepdaughter, was improperly excluded, and
(3) that the evidence was insufficient to establish mutilation of the body, the only aggravating
circumstance upon which the sentence of life without the possibility of parole was based.

         At trial, Lieutenant Phillip Johnson, with the Claiborne County Sheriff’s Department,
testified as follows: On February 25, 1998, he went to Clinch River Road to investigate a truck that
was in the river. The front of a red and silver F-350 pickup truck was lodged against a tree in the
river. The truck was a king cab and had back doors. He and the other investigators saw a human
elbow protruding from underneath a tarpaulin in the truck bed. When he removed the tarpaulin, he
saw the body of a white male, who was later identified as Jacob Schreffler. A ratchet strap was
around the victim’s mid-section, and the body was covered with dirt and sawdust. The victim had
four stab wounds and a round hole in his back, which appeared to be a bullet hole. His throat was
cut from one ear to his chin. The victim’s legs, knees, and forehead were cut. He had a large hole
in the center of his chest, and his right leg appeared to be broken.

        Johnson stated that he found a bolt-action shotgun inside the truck but that the bolt was
missing. The Tennessee Bureau of Investigation (TBI) Crime Lab searched the truck for evidence.
Johnson and Michael Vinsant, a TBI special agent, matched the truck’s license plate number to the
victim, who had a Hancock County address. Johnson then spoke with Hancock County Sheriff’s
Department Officer Steve Bryant, who told him that the victim had been missing for several days
and was last seen with the defendant and the defendant’s wife, Pam Thompson. Johnson and
Vinsant went to the defendant’s house, but no one was there. The next morning, Johnson went to
the school that the defendant’s children attended and learned that the defendant and his wife were
at the Villa Motel. When he went to the defendant’s motel room, the defendant said that he was just
going to see Johnson. Johnson read the defendant his Miranda rights, and the defendant said that
it was in self-defense and that he had to do it.

        Agent Steve Vinsant testified as follows: He examined the body of the victim at Claiborne
County Hospital. The body had a large cut on the head, a large hole in the chest, and a small hole
and stab wounds in the back. The x-ray of the torso revealed numerous white specks which were
particles of metal from a bullet.

        Vinsant stated that when the defendant was taken into custody, he indicated that he wanted
to make a statement. Vinsant read the defendant his Miranda rights, and the defendant signed a
waiver. The defendant stated, “I had to do it. Jake’s a big man. He was slinging me around like a
rag doll.” The defendant did not mention his daughter.

         Vinsant testified that the defendant’s wife consented to a search of their residence. During
the search, Vinsant recovered a photograph of the defendant holding a high-powered rifle. He also
noticed a burned area in the driveway, near which he found and collected samples of soil and gravel
which were reddish brown and appeared to be stained with blood. He also collected samples of
tarpaulin fibers from the same area. All of the evidence was sent to the TBI crime lab. The tests on
the soil samples revealed that the reddish brown material was human blood with the victim’s DNA.
The tests on the tarpaulin fibers revealed that the fibers were consistent with the tarpaulin in which
the victim’s body had been wrapped.

        Vinsant stated that Investigator Teddy Collingsworth of the District Attorney General’s
Office recovered a high-powered rifle several days later and that it was sent to the crime lab for
testing. Also, Vinsant recovered the bullet that was removed from the victim’s body during the
autopsy, and ballistics testing showed that the bullet was fired from the same rifle.



                                                 -2-
        Hancock County Sheriff’s Investigator Steve Bryant testified as follows: He collected
samples of red spots and hair from the defendant’s driveway. He also recovered a Marlboro pack
that had red spots on it. He gave this evidence to the TBI. He also noticed ashes in the driveway
and found two dually truck tire tracks in the ashes.

        John Cook, a neighbor of the defendant and of the victim, testified as follows: He last saw
the defendant in the afternoon of February 22, 1998, walking with his daughter toward the victim’s
house. He heard gunshots later that afternoon, but none sounded as if they came from a high-
powered rifle. The next day, Fran Styles, a friend of the victim, called him and said that she had
been unable to contact the victim. Styles asked him to look for the victim. Cook went to the
victim’s house but did not find him. As he was returning home, he noticed tire tracks from the
victim’s truck in the defendant’s driveway. The following day, February 24, 1998, Cook went to the
defendant’s house, and the defendant’s wife told him that the defendant was working out of town.
Cook also testified that the defendant usually smoked Marlboro cigarettes.

         Dr. Cleland Blake, a physician and forensic pathologist, testified as follows: On February 26,
1998, he performed an autopsy on the victim. The victim’s body had a gunshot wound in the back;
a two and one-half inch hole in the chest; a major cut across the forehead caused by a heavy, sharp
edge; a superficial cut about six inches long across the neck; four stab wounds in the back; fractures
of both legs caused by heavy pressure exerted from the back as if the body had been run over by a
car; multiple scratch abrasions; scrape abrasions on the face, the nose, and the forehead; and scrape
abrasions on the legs from being dragged. The bullet entered the back, destroying the vertebral
column and completely cutting the spinal cord, traveled through a lung and the heart, and stopped
just under the skin of the chest. The bullet was a .25 caliber, talon bullet, which has sharp petals that
tear tissue as it travels through the body. The cut on the forehead went through the bone and
damaged the brain. The hole in the chest was caused by a logging peavey, which went through the
ribs, through the surface of the lungs, through the heart, through the diaphragm, and into the stomach
and colon. Most of the injuries were inflicted after the victim had died, including the cut across the
forehead, the cut across the neck, the leg fractures, the leg scrapes, and the stab wounds in the back.
The toxicology tests revealed that the victim had ingested ethyl alcohol, cocaine, and
norpropoxyphene shortly before his death.

         Investigator Teddy Collingsworth, from the Hancock County District Attorney’s Office,
testified that on February 26, 1998, he photographed the defendant’s body, which had no noticeable,
large injuries. The next day, after the defendant waived his Miranda rights, the defendant made the
following statement:

        I stopped near where I ran the truck off the road at Clinch River and throwed the 257
        Roberts rifle, knife, axe, clothes, board, chunk of wood two and a half feet long. I
        bought two boxes of shells a long time ago. The rifle was in a hard case. I don’t
        want to make any other statements.




                                                  -3-
Collingsworth said that on March 2, 1998, he recovered a .257 caliber rifle in a hard case from a car
at Bobby Powell’s home. Later during the investigation, he recovered a logging peavey from the
victim’s tool shed.

        The defendant testified as follows: On February 22, 1998, he and his daughter went to the
victim’s house. Richard Maloney, a friend of the defendant and of the victim, and his son were
already at the victim’s house. The three men drank alcohol and shot guns, while the two children
played. About thirty minutes after Maloney and his son left, the defendant’s daughter left and
walked back home. A little later, he started to walk home, but the victim drove next to him and
insisted on giving him a ride. The victim drove the defendant to his house, but as the victim was
leaving, he backed the truck into the house. The defendant went inside the house to see if anything
had been damaged, and then he went back outside to find something with which he could patch the
hole. He covered the hole with a piece of tarpaulin and some tape. When he went back inside, his
seven-year-old daughter was very upset and said that the victim had put something in her bottom.
The defendant looked at her bottom and noticed that it was red and swollen and that her panties had
blood on them. He went outside and confronted the victim, which led to a physical altercation.
After a brief fight, the victim walked to his truck, reached into the back door, and drew a rifle. When
the defendant saw the butt of the rifle, he shot the victim. The defendant stated that he did not
remember doing anything else to the body.

         On cross-examination, the defendant admitted that he knew that the gun found in the back
of the truck could not have been fired because it did not have a bolt. He also stated that he gave his
gun to Robert Powell and asked him to hold it. The defendant testified that his wife had rented
another house and that his children were registered for school in a jurisdiction other than the one
where he resided. The defendant, however, denied that his wife was leaving him. The defendant
also said that he did not see the victim hug or touch his wife.

         The defendant’s daughter testified as follows: On February 22, 1998, she went with her
father, the defendant, to the victim’s house. She went behind the tool shed and as she was relieving
herself, she felt a hard sting in her bottom. She pulled up her pants, turned around, and saw the
victim. The victim told her not to tell anybody. She went to her father and said that she wanted to
leave, and her father told her to walk home. When she got home, she went to bed. Sometime later,
there was a bang on her bedroom wall. She ran outside and saw that the victim’s truck had crashed
into the house. When her father came inside, she told him that the victim had touched her, and she
showed him the blood on her panties.

        Dr. Mike Buckner, the defendant’s psychologist, testified as follows: He had seen the
defendant eleven times since April 16, 1998, and diagnosed the defendant as having post-traumatic
stress disorder and single-episode depression. He stated that the defendant, as is common with post-
traumatic stress disorder, had some memory loss of the events surrounding the murder. In his
opinion, within a reasonable degree of psychological certainty, the defendant could not have formed
the intent to commit murder. On cross-examination, he stated that if the information that the
defendant provided was false, then his diagnosis would be flawed.


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       Michael Cohan, the defendant’s private investigator, testified that he investigated the victim’s
residence. He stated that there were five children’s bicycles and a sled behind the victim’s tool shed.

      The state called three rebuttal witnesses: Teddy Collingsworth, Richard Maloney, and Teresa
White. Collingsworth testified that he talked to the defendant’s daughter the day after the victim’s
body was found and that she made the following statement:

       [O]n Sunday I went with my daddy to Jake’s house where they shot a gun. Richard
       and Matthew were there. Jake backed his truck into our house. This was about dark.
       Daddy was drinking beer. Jake never touched me on my privates. Mommy said
       daddy shot a deer that night. I heard two gun shots. Then when I got up the next
       morning, Jake was gone with his truck. I haven’t seen him since.

        Richard Maloney, a neighbor of the defendant and victim, testified as follows: He last saw
the victim at the victim’s house on February 22, 1998. The defendant and his daughter were also at
the victim’s house. He and the defendant saw a gun in the back of the victim’s truck, but the gun
was missing the bolt that ejects the cartridge. He testified that the defendant said that he would like
to shoot the gun when the bolt was fixed. He said that when the defendant’s wife drove by the
victim’s house, the defendant called her a derogatory name and made a gesture with his hand as
though shooting her with a gun.

         Teresa White, an ex-neighbor of the defendant, testified that her daughter invited the
defendant’s daughter to spend the night at her house on March 19, 1998. During the night, the
defendant’s daughter started crying and told her the following: She did not want her father to get out
of jail. When the victim was at her home, her parents had gotten into a fight. Her father hit her
mother, and the victim said to her father that if he had a wife like that, he would not hit her. Her
father accused the victim of doing something with his wife, and as the victim was leaving the house,
her father shot him. Her father buried the body in the back yard, but dug it up because he was afraid
that it would be found. He then cut up the body, placed it in a plastic bag, and dumped it in the
Clinch River. The defendant’s daughter also told White that there was blood all over the house and
that she, her brother, and her mother cleaned it up.

                            I. SUFFICIENCY OF THE EVIDENCE

        On appeal, the defendant contends that the evidence is insufficient to show premeditation on
his part. The defendant asserts that there is no substantive proof of premeditation, that the only proof
of premeditation was impeachment evidence, that he lacked the culpable mental state to form intent,
and that the state’s theory in rebuttal closing argument supports only a conviction for voluntary
manslaughter. The state contends that the evidence is sufficient.

        Our standard of review when the sufficiency of the evidence is questioned on appeal is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson


                                                  -5-
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the
evidence but presume 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).

       First degree premeditated murder is defined as a “premeditated and intentional killing of
another.” Tenn. Code Ann. § 39-13-202(a)(1). Further, “premeditation” is defined as

          an act done after the exercise of reflection and judgment. “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. § 39-13-202(d). The element of premeditation is a question for the jury and may be established
by proof of the circumstances surrounding the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn.
1997). Our supreme court has stated that the following circumstances are demonstrative of the
existence of premeditation: the use of a deadly weapon upon an unarmed victim, the particular
cruelty of the killing, declarations by the defendant of an intent to kill, evidence of procurement of
a weapon, preparations before the killing for concealment of the crime, and calmness immediately
after the killing. Id.

        The evidence, not including evidence introduced for impeachment purposes, in the light most
favorable to the state reveals that after a day of shooting guns and drinking, the victim drove the
defendant home. The defendant had a motive to kill the victim either because of his marital
problems or because of his daughter’s statement. The defendant acted upon his motive by obtaining
a high-powered rifle while the victim was at his house and shooting the unarmed victim in the back.
The defendant then wrapped the victim’s body in a tarpaulin, placed it in the bed of the victim’s
truck, and drove the truck into a river. The defendant gave the gun to a friend, who hid it under a
car, and disposed of the other weapons by throwing them into the river. The defendant then hid in
a motel room until he was located by the police. The evidence viewed in this light reveals that the
defendant had a motive to kill the victim, that he procured a deadly weapon, that he shot an unarmed
victim in the back, and that the defendant calmly tried to conceal the crime. A rational jury could
have found beyond a reasonable doubt based upon reasonable inferences from these circumstances
that the defendant was sufficiently free from excitement and passion to premeditate the murder.

        The defendant also contends that the evidence was insufficient to establish intent, arguing
that Dr. Buckner presented uncontradicted testimony that the defendant could not have formed the
intent to commit murder. However, this testimony was not uncontradicted. Dr. Buckner admitted
that his diagnosis could be flawed if the defendant had not told him the truth. However, we must
presume again that the jury resolved the conflicting testimony in the state’s favor. In viewing all of


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the evidence in the light most favorable to the state, we conclude that a rational trier of fact could
have found beyond a reasonable doubt that the defendant intentionally killed the victim.

      Finally, the defendant contends that the state’s closing argument shows an absence of
premeditation. The defendant asserts that the state’s argument supports only a verdict of voluntary
manslaughter and not one of murder. The state argued:

       I, ladies and gentlemen, submit to you that he went into a jealous rage, that he
       thought for some reason. He knew Pam was leaving him. She put her kids in
       another school. Rented another house. She goes by, this is Sunday right before it
       happens, you know b-i-t-c-h. He gets over there, he sees Jake do something, say
       something to her and he goes into a rage; and he militates [sic] this body. Not
       because of what he says Jake did to [his daughter]. He militates [sic] his body as a
       message to his family, to his wife. Don’t leave me. Don’t mess with other people.
       This is what’s going to happen.

First, a rational jury could infer premeditation from this argument, considering it along with all of
the evidence presented in the case. Second, this argument was one of a couple of theories presented
by the state in its closing. The state undoubtedly knew that the jury would be charged with the lesser
included offense of voluntary manslaughter. Even if this argument supported voluntary
manslaughter, it is not error to present alternative theories supporting the different offenses to be
charged to the jury. The jury was entitled to reject this theory in favor of another. Finally, and most
importantly, this was argument, not evidence. The jury was instructed accordingly. The jury could
have completely ignored this argument in reaching a verdict based upon the evidence. We conclude
that the state’s argument does not render the evidence insufficient to show premeditation.

                               II. SURREBUTTAL TESTIMONY

         The defendant contends that the trial court erred in not allowing him to introduce the
surrebuttal testimony of Kimberly Johnson, the victim’s ex-stepdaughter. At the close of the state’s
rebuttal evidence, the defendant asked to call Johnson. The defendant asserted that Johnson would
testify that approximately nine years ago, the victim was convicted of assaulting her and that on
another occasion the victim entered her bedroom and fondled her. The trial court ruled that this
testimony was not proper surrebuttal evidence because it did not specifically answer the state’s
rebuttal evidence.

        Rebuttal evidence is “any competent evidence which explains or is in direct reply to or a
contradiction of material evidence introduced by the accused.” Nease v. State, 592 S.W.2d 327, 331
(Tenn. Crim. App. 1979). The state is given the right of rebuttal because it “does not and cannot
know what evidence the defense will use until it is presented at trial.” State v. Cyrus Deville Wilson,
No. 01C01-9408-CR-00266, Davidson County, slip op. at 9 (Tenn. Crim. App. Nov. 15, 1995)
(citation omitted). Following the state’s rebuttal, the defendant is entitled to present surrebuttal
evidence to explain, contradict, or directly reply to the state’s rebuttal evidence. See State v. Evans,


                                                  -7-
710 S.W.2d 530, 535 (Tenn. Crim. App. 1985) (holding that surrebuttal testimony was improper
because it did not contradict the state’s rebuttal testimony). Because there must be “‘an end to the
calling of witnesses at some time’ . . . as well as ‘a limit to [the evidence received in] rebuttal and
surrebuttal,’” questions regarding the admissibility of rebuttal and surrebuttal evidence are left to the
sound discretion of the trial court. State v. Scott, 735 S.W.2d 825, 828 (Tenn. Crim. App. 1987)
(citations omitted). The trial court’s decision will only be reversed upon a showing of a clear abuse
of discretion. Id. (citation omitted).

         First, the defendant argues that he should have been able to introduce Johnson’s testimony
because the trial court stated that it may have been relevant if it had been offered during the
defendant’s case-in-chief. The defendant relies on State v. Kendricks, 947 S.W.2d 875 (Tenn. Crim.
App. 1996), in which the trial court allowed the state to introduce rebuttal testimony that should have
been introduced in its case-in-chief. The defendant asserts that he should receive the same benefit
in this case. First, we note that the trial court in the present case stated that Johnson’s testimony may
or may not have been relevant in the defendant’s case-in-chief. Therefore, Johnson’s testimony is
unlike the testimony in Kendricks because it was not unquestionably relevant. Regardless, in
Kendricks, this court did not hold that the state always has a right to present rebuttal evidence that
should have been introduced in its case-in-chief. Accordingly, the defendant in the present case did
not have a right to introduce surrebuttal evidence just because it may have been admissible in his
case-in-chief.

        The defendant also argues that even if he was not allowed to present Johnson’s testimony as
a matter of right, he should have been allowed to introduce it to contradict the testimony of the
rebuttal witnesses. In the present case, the state presented three rebuttal witnesses: Teddy
Collingsworth, Teresa White, and Richard Maloney. The defendant asserts that Johnson’s testimony
regarding being assaulted by the victim would have contradicted White’s testimony, which implied
that the victim was not the initial aggressor. He also argues that Johnson’s testimony regarding the
sexual assault by the victim would have contradicted the testimony of White and Collingsworth.

        White was called to impeach the testimony of the defendant’s daughter. She testified that the
defendant’s daughter told her that her father shot the victim after accusing him of having something
to do with his wife. White also testified that the defendant’s daughter told her that her father buried
the victim, then dug him up, cut him up, and dumped him in the river. The version of the murder that
the defendant’s daughter told White contradicts the defendant’s daughter’s testimony, in which she
alleged that the victim sexually assaulted her. Collingsworth was also called to impeach the
testimony of the defendant’s daughter, and he testified that the defendant’s daughter told him that the
victim never touched her private parts.

        In refusing to allow Johnson’s testimony, the trial court stated that surrebuttal is to answer
specifically the state’s rebuttal evidence and found that the proffered testimony was not within the
scope of surrebuttal. Although we acknowledge that the testimony might have some relevance for
contradicting the state’s rebuttal proof, we view it to be marginally probative. We cannot say that the
trial court abused its discretion in refusing to allow Johnson’s testimony. Moreover, we doubt that


                                                  -8-
the testimony was admissible under Tenn. R. Evid. 404(b). Rule 404(b) states, “Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action
in conformity with the character trait.” However, such evidence may be admissible if it is offered to
show identity, intent, or to rebut a claim of accident or mistake. See Tenn. R. Evid. 404(b), Advisory
Commission Comment; State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985).

        In the present case, the defendant sought to introduce Johnson’s testimony to show that the
victim assaulted and sexually assaulted her. While this evidence arguably would have rehabilitated
the defendant’s daughter’s credibility, it would have done so because it suggests that the victim had
a propensity to be the initial aggressor and/or to sexually assault children. This is the type of evidence
prohibited by 404(b).

              III. MUTILATION AS AN AGGRAVATING CIRCUMSTANCE

       The defendant contends that the trial court should have dismissed mutilation of the body as
an aggravating factor because no proof of mutilation existed. The defendant’s argument rests upon
his definition of mutilation. The defendant asserts that mutilation is limited to severance or
destruction of a body part. The state argues that mutilation encompasses a broader range of behavior,
including stabbing or cutting the body after death. We agree with the state.

        Mutilation is not defined in our code. When words in statutes are not defined, they must be
given their ordinary and natural meaning. See State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985).
In Webster’s Third New International Dictionary, 1493 (1993), the verb “mutilate” is defined as: “1.
to cut off or permanently destroy a limb or essential part . . . 2. to cut up or alter radically so as to
make imperfect.” Merriam-Webster’s Collegiate Dictionary, 768 (10th ed. 1994), provides an
identical definition of “mutilate,” except that the primary and secondary definitions are reversed. This
reversal is significant because only the first definition in Webster’s (the second definition in Merriam-
Webster’s) supports the defendant’s assertion that mutilate means to sever or destroy a body part.
However, the second definition in Webster’s (the first in Merriam-Webster’s) supports the state’s
view that mutilate has a broader definition. We believe that the ordinary and natural meaning of
mutilation, and the one that our General Assembly intended, is the broader definition.

          This court has previously stated that the legislative intent underlying mutilation as an
aggravating circumstance must be “that the General Assembly . . . meant to discourage corpse
desecration.” State v. David Eric Price, No. E1999-02684-CCA-R3-CD, Hamilton County, slip op.
at 42 (Tenn. Crim. App. July 25, 2000). “Desecrate” is defined as: “1. To violate the sanctity of . .
. 2. to treat disrespectfully, irreverently, or outrageously.” Merriam Webster’s Collegiate Dictionary
312 (10th ed. 1994). Given the meaning of desecrate, this intent suggests a broader meaning than just
severing or destroying a body part. However, a corpse can be desecrated in many ways without being
mutilated, e.g., dumping a body in a river. Therefore, while this court’s view of the legislative intent
provides some guidance, it is not conclusive as to the intended definition of mutilation.




                                                   -9-
        The manner in which the Tennessee Supreme Court has used the term “mutilation” also
indicates that it views mutilation to have a broader definition than the one proposed by the defendant.
In State v. Zagorski, 701 S.W.2d 808 (Tenn. 1985), the court addressed the aggravating circumstance
of the murder being especially heinous, atrocious, or cruel in a case in which the victims died from
gunshot wounds but also had their throats cut. Zagorski, 701 S.W.2d at 814. No body parts were
severed or destroyed. The court affirmed the finding of the aggravating circumstance, stating that the
defendant needlessly mutilated the victims. Id.

        In State v. Smith, 868 S.W.2d 561 (Tenn. 1993), the court used mutilation in a similar manner.
In Smith, one of the three victims died from a gunshot wound, but the defendant, after the victim was
dead, slashed her neck and stabbed her with a knife and an awl. Id. at 566. There was no allegation
of body parts being severed or destroyed. After analyzing the aggravating circumstance of whether
the murder was especially heinous, atrocious, or cruel, the court concluded that this circumstance was
applicable because of “the multiplicity of the wounds, the infliction of gratuitous violence on the
victims and their needless mutilation.” Id. at 580. Using mutilation in this manner is consistent with
the broader definition of mutilation.

         We hold that mutilation as used in Tenn. Code Ann. § 39-13-204(i)(13) has a broader
definition than just the destroying or severing of body parts. Mutilation also includes “to cut up or
alter radically so as to make imperfect.” See Browne v. State, 933 P. 2d 187, 193 & n.3 (Nev. 1997)
(approving an instruction that mutilate means “to cut off or permanently destroy a limb or essential
part of the body or to cut off or alter radically so as to make imperfect”) (emphasis added).

         We conclude that the trial court did not err in applying mutilation of the body as an
aggravating factor. After the victim died, the defendant stabbed him four times in the back with a
knife, slit his throat, cut his forehead and legs, and fractured both of his legs by exerting great pressure
from behind. This evidence is sufficient to support the finding of mutilation of the body.
                                            IV. CONCLUSION

       Based upon the foregoing and the record as a whole, we affirm the defendant’s conviction and
sentence.



                                                          ___________________________________
                                                          JOSEPH M. TIPTON, JUDGE




                                                   -10-
