        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs January 29, 2014

         STATE OF TENNESSEE v. JOSEPH EGAN UNDERWOOD

                   Appeal from the Criminal Court for Knox County
                        No. 98678A     Bob R. McGee, Judge


                 No. E2013-01221-CCA-R3-CD - Filed March 6, 2014


The defendant, Joseph Egan Underwood, appeals his Knox County Criminal Court jury
convictions of first degree murder and especially aggravated kidnapping, challenging the
sufficiency of the convicting evidence. Discerning no error, we affirm.

            Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and J EFFREY S. B IVINS, JJ., joined.

Joshua Hedrick, Knoxville, Tennessee, for the appellant, Joseph Egan Underwood.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Leslie Nassios, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               The convictions in this case relate to the kidnapping and murder of the victim,
Richard Lucas, at the hands of the defendant and his girlfriend, Kimberly Anne Sutton. The
proof adduced at trial established that the defendant, Ms. Sutton, and the victim had been
drinking at the victim’s home when the victim and Ms. Sutton began to argue. The argument
escalated, and the victim pushed Ms. Sutton onto a bed and punched her. The defendant
became enraged and commenced beating the victim. At some point, the victim was also
stabbed in the neck and arm, his hands and feet were bound, and he was placed inside a blue
plastic storage container, which was concealed in a locked shed behind the victim’s house.
After stealing several items from the victim’s residence, the defendant and Ms. Sutton fled.

              In January 2012, the Knox County grand jury charged both the defendant and
Ms. Sutton with one count each of first degree premeditated murder, two counts each of
felony murder, and four counts each of especially aggravated kidnapping.1 The trial court
conducted a jury trial in January 2013.

                Officer Roger Simmons with the Knoxville Police Department (“KPD”)
testified that, on November 18, 2011, he responded to a domestic disturbance call at Tyson
Park. When he arrived, Officer Simmons observed a man and woman, later identified as the
defendant and Ms. Sutton, who “obviously had been in an argument,” though neither
appeared to have sustained any injuries and both appeared intoxicated. Upon learning the
woman’s identity and discovering that she was named in an outstanding warrant, Officer
Simmons placed Ms. Sutton under arrest. While en route to the jail and apparently pursuant
to a conversation with Ms. Sutton, Officer Simmons stopped at a Knoxville residence on East
Morelia Avenue to conduct a welfare check on the homeowner, later identified as the victim.
When Officer Simmons received no response to his repeated knocks on the front door, he
proceeded to the rear of the residence where he discovered the back door was ajar. Officer
Simmons confirmed that the residence was empty and then called for additional police units.

               Officer Simmons and other KPD officers canvassed the neighborhood and
determined that the victim had not been seen in at least four days. While Officer Simmons
was at the victim’s residence, he observed a shed with a small metal padlock in the western
corner of the yard. He later transported Ms. Sutton to KPD headquarters.

              KPD Officer Matt Peters testified that he, too, responded to the domestic
disturbance call at Tyson Park on November 18. Officer Peters placed the defendant under
arrest for public intoxication. Although the defendant was initially quiet, he later became
“very panicky” and “agitated” and stated that “he had done things that would keep him
locked up for a long time and that he would never get out of jail after they had found out
what he did.”

              KPD Transportation Officer Rocky McCulloch testified that he encountered
the defendant on November 18 while the defendant was seated in a “release area” waiting
to be transported to KPD detectives for questioning. Another prisoner asked the defendant
if he was about to be released, to which the defendant responded, “I’m probably never getting
out of here.”

                Rebecca Byers, a KPD crime scene technician, testified that she processed the


        1
          In their briefs before this court, both parties mistakenly state that the defendant was charged with
both especially aggravated kidnapping and aggravated kidnapping. It is clear from the indictment, however,
that the defendant was not charged with the latter offense.

                                                     -2-
crime scene at East Morelia Avenue on November 18. She testified that she discovered
blood spatter in at least three different rooms in the residence, and she also found, in the front
bedroom, “a Dawn bottle that had some bleach in it that had been used to clean up.” Ms.
Byers was able to ascertain that items in the house had been moved because blood was
discovered behind and underneath items. She observed blood stains on the carpet in both the
living room and a bedroom, and items had been placed on top of some of the stained areas.
In the kitchen, Ms. Byers found empty tape dispensers and a tube of caulking.

               Ms. Byers took dozens of photographs of the crime scene, which the trial court
admitted into evidence. One photograph depicted the interior of the shed located behind the
victim’s residence and showed a blue blanket covering a rectangular object, which another
photograph revealed to be the blue plastic storage container. Other photographs depicted the
victim’s decomposing body stuffed inside the container and showed tape binding together
both his hands and his feet. The photographs also showed white caulk on the edges of the
plastic container and on the victim’s head. Photographs taken of the interior of the victim’s
house showed blood and blood spatter on various places throughout the victim’s bedroom,
living room, and kitchen. Ms. Byers also took photographs of a bottle of liquid detergent that
contained bleach sitting on top of an armoire in the bedroom, and photographs depicted
bleach stains on the furnishings below the bottle.

              Ms. Byers described photographs taken of the interior of the plastic container,
which was coated with blood, as well as photographs of the victim’s clothing, which was
covered in blood. The victim’s hands were bound with blood-stained thermal pants, and the
pants had been wrapped with packing tape. The victim’s feet were bound with packing tape
as well.

              KPD evidence technician Danielle Weiberg testified that she was called to
collect evidence located at a homeless encampment underneath an interstate bridge near 17th
Street. She photographed and collected a knife that was located inside the tent of a black
male.

               KPD Investigator Patricia Tipton testified that she was called to the 17th Street
underpass to locate the defendant’s tent and camp site. Investigator Tipton photographed and
collected various items, including sleeping bags, camping equipment, and a pair of women’s
size 7 athletic shoes.

             Special Agent Keith Proctor with the Tennessee Bureau of Investigation Crime
Laboratory testified as an expert witness in the field of deoxyribonucleic acid (“DNA”)
analysis. Special Agent Proctor testified that he obtained DNA profiles from the victim, the
defendant, and Ms. Sutton, and he then compared those profiles to the evidence on file.

                                               -3-
Special Agent Proctor matched the victim’s DNA profile to the blood found throughout the
victim’s house on a variety of items in the bedroom, the living room, and the kitchen. Upon
examination of the DNA evidence taken from the lid handles of the plastic storage container,
Special Agent Proctor found the presence of the victim’s DNA as well as that of “an
undetermined minor contributor,” which “may or may not” be the defendant.

               KPD Investigator Jason Booker testified that he responded to the crime scene
on November 18, 2011. When he arrived, he was informed that officers had discovered a
dead body inside a storage container and that they had learned of the location of the body
from Ms. Sutton. Investigator Booker then proceeded to the police department to interview
Ms. Sutton. After speaking with Ms. Sutton, Investigator Booker interviewed the defendant.
Investigator Booker described the defendant’s demeanor as “fairly calm and level headed,”
and, although he was aware that the defendant had been arrested earlier that day for public
intoxication, Investigator Booker did not believe the defendant to be under the influence of
an intoxicant. The defendant signed a waiver of his constitutional rights after being provided
Miranda warnings, and Investigator Booker proceeded to question the defendant about his
involvement in the victim’s death. The defendant explained that he had known the victim
for approximately two months and that Ms. Sutton had introduced them. The defendant
stated that he had last visited the victim’s house “maybe a week ago” and confirmed that,
during that visit, Ms. Sutton and the victim had “got[ten] into it.”

              Q:     What about?

              A:     [The victim] was a little drunk . . . mou . . .mouthing off
                     at the f***ing mouth and he got smart with me.

              Q:     Well, did he get into it with you over [Ms. Sutton] or
                     something else?

              A:     He was just running his f***ing mouth and she told him
                     to shut up. His exact words were, “well, you can get the
                     f*** out, too.”

              Q:     He told her that?

              A:     Yes sir; that’s affirmative.

              Q:     What happened after that?

              A:     She walked into his bedroom to get her stuff; he

                                             -4-
                     physically pushed her and punched her . . .

              Q:     Oh, he punched her?

              A:     Yes sir; it’s a fact. I physically lost my mother-f***ing
                     mind and beat the mother-f***ing brakes off of him.

              Q:     Because of what he did to her?

              A:     Yes sir . . . I whipped his ass.

              Q:     Was she there when . . . when you were fighting him?

              A:     Yes sir.

              Q:     Was she doing anything?

              A:     No sir – not yet.

The defendant stated that the victim was bleeding and that he thought “his head was busted,”
but he was not unconscious. The interview continued as follows:

              Q:     Tell me as best detail you can . . . what happened?

              A:     Okay. He pushes her and hits her. I f***ing spazz out;
                     we’ve all been drinking; and I’m not using that as a
                     f***ing crutch . . .

              Q:     Naw.

              A:     Okay. I beat the f***ing living hell out of him. I was
                     just . . . f***ing spazz out. I’m beating the brakes off
                     this mother-f***er. So, I let him r . . . I let him alone;
                     getting ready to go. Ms. Sutton just so happens to say,
                     “He’s calling your name. He’s . . . he’s calling your
                     name. He knows who you are. He’ll press charges.
                     They’ll put you under the jail.” Let’s go. She didn’t
                     want to leave. She said, “Well, let’s just kill him.” I
                     said, “I ain’t f***ing killing him, you kill him.” If you’ll
                     notice, he’s got a laceration to his f***ing throat . . . his

                                              -5-
                     throat. She stabbed the mother-f***er in the throat with
                     a knife. Did I beat the f*** out of him, Investigator?
                     Yes sir, I did. Did I kill him? No sir, I did not. Did I
                     clean the . . . did I clean the crime[] scene up? No sir, I
                     did not; Ms. Sutton did that. Did I drag him and put him
                     in that f***ing shed? No sir, I did not. Ms. Sutton did
                     that. Now here we are.

                The defendant then informed Investigator Booker that he sold the knife to a
“gentleman at the Mission” named Steve, and he told the investigator where he could likely
locate the man. The defendant confirmed that the victim was conscious and “calling [his]
name” after the beating, but he denied killing him, again stating that Ms. Sutton had stabbed
the victim in the left side of his throat. The defendant stated that he and Ms. Sutton had
placed the victim in the plastic storage container before Ms. Sutton stabbed him, explaining
that his intention had been to place the victim in the bin “until he was all right and let him
try to straighten up” but that Ms. Sutton “wasn’t going for that.” The defendant initially
explained that he wrapped tape around the victim’s hands “in the middle of while I was
beating him up.” He then stated that he stopped beating the victim upon determining that
“he’s had enough,” but because the victim was “still bucking on me,” the defendant decided
to “tape[] his hands and his legs.” The defendant stated that the knife Ms. Sutton used to stab
the victim belonged to the victim, but he did not know where Ms. Sutton had found the knife.
The defendant strenuously denied dragging the plastic container out of the house and into the
shed, claiming that Ms. Sutton acted alone in that regard. The defendant estimated that the
crime had occurred five or six days previously although he could not be certain. When asked
whether he and Ms. Sutton had taken anything from the victim’s house, the defendant
admitted to taking a sleeping bag, “some shelter halves that makes tents,” compact discs
(“CDs”), digital video discs (“DVDs”), a pocket watch, a second knife, a “Gerber tool,” and
a belt buckle. The defendant stated that he had sold everything with the exception of the
sleeping bag and the tents, which he stated were still at his camp site underneath the 17th
Street overpass. The defendant also stated that Ms. Sutton’s white athletic shoes, which she
was wearing the night of the crime, could be found at his camp site. When Investigator
Brooks asked if the defendant recalled anything the victim said to him, the defendant gave
the following response:

              A:     Well, he kept trying to buck on me. So that just enraged
                     me f***ing more and more and more and more and more
                     so I just committed just to beat the f*** out of him more
                     and more and more and more and more . . . . . . . . . I like
                     to fight; especially when a man that you treat f***ing
                     good and like a brother and give every f***ing thing you

                                              -6-
     get and then he puts his hands on my old lady . . . that’s
     grounds for f***ing “smash on sight.” I smashed him on
     f***ing sight, by God. I didn’t kill him; didn’t stab him
     in the f***ing throat. She did. But I beat the f*** out of
     him and I was there. I didn’t drag his f***ing dead,
     worthless corpse in the f***ing . . . in the shed. It was
     put in the pantry where I had it . . . but you see sweet,
     little old innocent, weak . . . weakly feeble-looking [Ms.
     Sutton], let me tell you something that’s just a f***ing
     front, buddy. I didn’t drag that f***ing corpse,
     Investigator, to that f***ing shed. Once he was f***ing
     dead and I seen he was dead, I put him in his pantry.

Q:   So did you put him in the . . . I know you said it was in
     the kitchen . . . the tub was in the kitchen, right?

A:   It had all these beer cans in it.

Q:   So you . . . did you dump ‘em out?

A:   I . . . no ma’am . . . no sir, I did not. Ms. Sutton dumped
     the mother-f***er out.

Q:   Okay and then you put him in the tub . . .

A:   No sir; that’s a negative. We put him in the tub . . . I
     bound his hands and his legs.

Q:   Okay, you bound his hands and his legs . . . both of you
     put him in the tub.

A:   We . . . both of us picked him up and put him in the tub.

Q:   He was stabbed; she stabbed him.

A:   She stabbed him ‘bout 20 or 30 minutes later.

Q:   Twenty or thirty minutes later after he had already been
     in the tub?



                              -7-
              A:     Yes sir.

              Q:     Okay, so he just been . . .

              A:     He was still alive when he was in the tub.

              Q:     Was he saying anything or gurgling or moaning or . . .

              A:     He was gurgling and moaning. She said, “Finish him.”

              Q:     So she told you to finish him?

              A:     Yes sir. I said, “No ma’am, I’m not.”

              Q:     What did she say to that?

              A:     She . . . frankly, Investigator, you want . . . you want me
                     to tell you . . . tell you exactly what she said?

              Q:     Yeah.

              A:     She said, “Well, how do I kill him?”

              Q:     So she asked you how to kill him?

              A:     Said, “F***, I don’t know. Stab him with something,
                     break his f***ing neck, do . . . f***, I don’t know.” She
                     stabbed the mother-f***er in the neck.

At the conclusion of the interview, the defendant admitted to “beat[ing] the f*** out of” the
victim but reiterated that he did not kill him.

                Investigator Booker testified that he was able to locate the man known as
“Steve,” and Steve still had the knife in his possession that the defendant had sold to him a
few days earlier. Steve told him that, when he purchased the knife from the defendant, the
defendant was selling other items to people “down at the mission.” Investigator Booker
stated that the victim’s hands and feet were bound in the same manner that the defendant had
described, and officers located the defendant’s camp site, which included the tents, sleeping
bag, and white athletic shoes described by the defendant.



                                             -8-
               Doctor Christopher Lochmuller, Knox County deputy medical examiner,
testified that he performed an autopsy on the victim on November 19, 2011. Doctor
Lochmuller stated that, once the victim was removed from the plastic container and the
victim’s clothing was removed, he noticed “severe external injuries, particularly about the
face” with “large areas of bruising on both sides of the face,” multiple lacerations and skin
scrapes on both sides of his face, and “a number of scrapes on his extremities.” Doctor
Lochmuller also noticed two stab wounds: one to his left forearm and one at the base of the
neck on the left side. With respect to internal injuries, Doctor Lochmuller testified that the
victim sustained fractures to his nose, the upper part of his mouth, and both cheeks; the
victim’s larynx had been crushed; his liver was torn; he had approximately 100 milliliters of
blood in his abdomen; and he had sustained 13 rib fractures. Although the stab wound to his
left arm went through “primarily skin and fat,” the neck wound “went through some of the
muscle and actually entered the left side of the larynx.” Through the testimony of Doctor
Lochmuller, the State introduced into evidence a number of autopsy photographs depicting
the victim’s injuries.

               When asked if he had formed an opinion as to how long the victim had been
deceased when his body was discovered, Doctor Lochmuller explained that the victim’s
exposure to cold November temperatures likely delayed his decomposition, which made it
difficult to discern the time of death. Doctor Lochmuller admitted that the time of death
“could be as long as” four to seven days. Doctor Lochmuller did not notice any bruising or
marks on the victim’s hands, but he testified that the stab wound on the victim’s arm could
be consistent with a defensive wound. With respect to the stab wound to the neck, Doctor
Lochmuller stated that it alone could “cause bleeding into the airways,” which could “lead
to asphyxia and death.” The doctor testified that the victim’s facial injuries “were in and of
themselves survivable,” stating that the victim had not sustained any skull fractures. Doctor
Lochmuller opined that the cause of death was multiple blunt force injuries and stab wounds,
which contributed to blood loss and asphyxiation.

                Although Doctor Lochmuller could not determine the sequence of the injuries
inflicted on the victim, he testified that the victim was alive when he was placed in the plastic
container. He based this opinion on both “the presence of blood in the container” and “the
fact that the blood in the container was clotted,” which he explained is only possible when
the victim is still alive. Doctor Lochmuller also opined that the victim “sustained all the
injuries prior to being placed into the container.” When asked which of the victim’s wounds
were lethal, Doctor Lochmuller responded as follows:

              All of his wounds together, it’s the combination of all of them
              that come together to cause his death. But the ones that would
              be the most serious or likely to die from if you don’t seek

                                               -9-
              medical therapy quickly would be the stab wound to the left side
              of the neck, the crushing injury to the larynx, and potentially the
              tearing of the liver. It could – it bled some, so he died before it
              became a problem, but it’s something that could potentially have
              a lethal amount of bleeding from. So at least those three, that all
              of them together, all the blood loss from the tearing, you know,
              from all the lacerations, it all adds up.

              Doctor Lochmuller testified that the victim’s blood alcohol level was 0.19 and
that he was “otherwise a healthy individual.” The doctor stated that the victim was five feet
six and three-quarter inches in height, he weighed 123.5 pounds, and he was 52 years of age.

              On cross-examination, Doctor Lochmuller admitted that he could not say with
any degree of medical certainty whether the victim was conscious or unconscious when he
was placed in the plastic container.

              With this evidence, the State rested its case. Following the trial court’s denial
of the defendant’s motion for judgments of acquittal and a Momon colloquy, see Momon v.
State, 18 S.W.3d 152, 161-62 (Tenn. 1999), the defendant elected to testify.

               The defendant testified that he was 29 years of age and that he had been
homeless for “[a]pproximately two and a half years off and on.” The defendant stated that
he met Ms. Sutton in July 2011. She was homeless as well, having just been released from
prison, and the two began dating. Approximately two months later, Ms. Sutton introduced
the defendant to the victim as “a family friend,” and both Ms. Sutton and the defendant lived
with the victim for two to three weeks. The defendant moved out when he and Ms. Sutton
broke off their relationship, and the defendant resumed living on the streets while Ms. Sutton
briefly moved to Florida.

               The defendant and Ms. Sutton kept in touch, and when Ms. Sutton returned to
Knoxville, the defendant met her at the bus station, and the two of them attended the local
Veterans Day parade. After spending one night in a hotel, they briefly stayed on the streets
until Ms. Sutton decided to return to the victim’s house to retrieve some clothing she had left
there. The defendant testified that when they arrived at the victim’s house, the victim was
happy to see them, and the defendant stated that he had no intention of harming the victim
or stealing from him at that time. The defendant, Ms. Sutton, and the victim talked while
consuming the defendant’s liter of bourbon. The defendant and the victim then walked to
a nearby liquor store and purchased a pint of bourbon. They returned to the victim’s house
and drank the pint of bourbon with Ms. Sutton, at which time all three were “extremely
drunk.” The defendant testified that, at that time, the victim “began to get an attitude” and

                                             -10-
started “murmuring things under his breath.” The victim and the defendant began to argue,
and Ms. Sutton told the defendant that he should leave. The defendant became emotional
because he did not want to leave Ms. Sutton, and Ms. Sutton told the defendant to stay, which
prompted the victim to become angry. Ms. Sutton asked the victim “not to disrespect” the
defendant, and the victim told her to “get your s*** and get the f*** out too, b****.”

              Ms. Sutton proceeded into the bedroom to gather her things, and the victim
followed her, grabbed her by the shoulders, and shoved her onto the bed. Before Ms. Sutton
could stand up, the victim “punched her in the face.” The defendant testified that he became
“enraged” because “this man assaulted and punched my girlfriend whom I loved.” The
defendant stated that he walked into the bedroom and punched the victim in the face, which
caused the victim to fall to the floor. The defendant testified that he allowed the victim to
stand, thinking that the altercation was over, but the victim then “charged [him] into the
armoire” and hit him in the stomach, causing the defendant to double over. The defendant
was wearing a suit and tie, and the victim grabbed the defendant by his tie and tried to choke
him. The fight continued in the bedroom, eventually spilling out into the living room. The
defendant admitted that, at some point, the victim stopped fighting, but he continued to beat
the victim, explaining that he was “so enraged” that he “couldn’t help” himself.

                The defendant testified that he eventually stopped beating the victim, and when
he saw the victim’s condition, he thought, “Oh, God, I’ve killed this man.” When asked why
he thought the victim was dead, the defendant responded that the victim was not moving or
making any sounds, and it appeared to the defendant that the victim was not breathing. At
that time, the defendant “panicked and freaked out and figured if I hide the body I won’t get
in trouble.” The defendant and Ms. Sutton placed the victim in a plastic storage container
they found in the victim’s kitchen. Because they were struggling to make the victim’s body
fit inside the container, the defendant bound the victim’s “hands and legs together so [he]
could get the lid on the tote.” The defendant testified that Ms. Sutton stabbed the victim
while he was inside the container and claimed that he had “no idea why she would stab a
dead body.”

               The defendant stated that, after he placed the lid on the container, he moved
the container into the pantry while Ms. Sutton attempted to clean the crime scene. Later, Ms.
Sutton stated that the pantry “wasn’t a good enough spot” and that the victim should be
moved outside. The defendant admitted that, before they left the victim’s house, he and Ms.
Sutton stole “a couple of DVDs, a couple of CDs, a pocket watch, and some Dale Earnhardt
cards, along with two knives.” He denied any intent to steal from the victim prior to placing
the victim in the plastic container.

              After leaving the victim’s house, the defendant and Ms. Sutton sold some of

                                             -11-
the items they stole and then patronized a liquor store. The defendant estimated that he and
Ms. Sutton spent “approximately a week” on the streets before they got into an argument in
Tyson Park over Ms. Sutton’s desire to engage in prostitution and were both arrested for
public intoxication.

                The defendant admitted that, when he was interviewed by Investigator Booker,
he claimed that the victim was alive when he was placed in the storage container, but he
testified that he had lied because he “was scared to admit it to Mr. Booker that I beat [the
victim] to death.” The defendant confirmed that he had beaten the victim to death and denied
that the victim was alive when he put his body in the plastic container. When asked why he
had told Investigator Booker that Ms. Sutton had killed the victim, the defendant stated
“[b]ecause I witnessed this woman stab a dead man that was in a Tupperware container, and
this woman was going to go prostitute herself,” which indicated to him that she “cared
nothing about me.”

                On cross-examination, the defendant admitted that the version of events he had
just testified to was “significantly different” than what he had told Investigator Booker on
November 18, 2011. With respect to the victim’s injuries, the defendant admitted that he
caused the compound fracture to the victim’s nose; broke both of his cheek bones; caused
lacerations to his face; broke the upper palate of his mouth; broke 13 of his ribs; caused the
laceration to his liver; and caused the tearing around his ears. The defendant agreed that the
victim’s blood was found in three separate rooms of the victim’s house, and he agreed that
he had beaten the victim in each of those three rooms. The defendant denied wrapping the
victim’s hands in thermal pants, claiming that he wrapped them only with tape and opining
that “someone” must have removed the tape from the victim’s hands, wrapped the hands in
thermal pants, and then reapplied the tape over the pants. The defendant admitted to taking
items belonging to the victim when the defendant and Ms. Sutton left the house. When asked
about Doctor Lochmuller’s testimony that the victim was stabbed in the throat prior to being
placed in the plastic tub, the defendant responded that the deputy medical examiner “wasn’t
at [the victim’s] house that evening.”

               Based on this evidence, the jury convicted the defendant as charged of first
degree murder, felony murder in perpetration of a kidnapping, felony murder in perpetration
of a theft, and four alternative counts of especially aggravated kidnapping. The trial court
merged the two felony murder convictions with the first degree murder conviction and
imposed an automatic sentence of life imprisonment. Following a sentencing hearing, the
trial court merged the four jury verdicts of especially aggravated kidnapping into a single
conviction and imposed a 23-year sentence to be served concurrently to the defendant’s life
sentence.



                                             -12-
              Following the denial of his timely but unsuccessful motion for new trial, the
defendant filed a timely notice of appeal. In this appeal, the defendant contends only that the
evidence adduced at trial was insufficient to support his convictions.

                As an initial matter, we note that the defendant came close to waiving our
consideration of this issue for failure to properly support his argument with citation to
authorities. See Tenn. R. App. P. 27(a)(7) (stating that the appellant’s brief must contain an
argument “setting forth . . . the contentions of the appellant with respect to the issues
presented, and the reasons therefor . . . with citations to the authorities . . . relied on); Tenn.
Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to authorities,
or appropriate references to the record will be treated as waived in this court.”). The
defendant’s brief contains only citations to the three statutes at issue and a single case which
sets forth this court’s standard of review when analyzing a challenge to the sufficiency of the
evidence. Although the defendant’s list of authorities is wanting, we will nonetheless
address his argument.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324
(1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).

                When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State
the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. Id.

                              First Degree Premeditated Murder

               First degree murder, as charged in this case, is “[a] premeditated and
intentional killing of another.” T.C.A. § 39-13-202(a)(1). As used in the statute,

               “premeditation” is an act done after the exercise of reflection
               and judgment. “Premeditation” means that the intent to kill

                                               -13-
               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).

               Noting that “[p]roof of premeditation is inherently circumstantial,” this court
has observed that “[t]he trier of fact cannot speculate what was in the killer’s mind, so the
existence of premeditation must be determined from the defendant’s conduct in light of the
circumstances surrounding the crime.” State v. Gann, 251 S.W.3d 446, 455 (Tenn. Crim.
App. 2007); see also State v. Johnny Wright, No. 01C01-9503-CC-00093 (Tenn. Crim. App.,
Nashville, Jan. 5, 1996) (citing LaFave and Scott, Substantive Criminal Law § 7.7 (2d ed.
1986)). Thus, in evaluating the sufficiency of proof of premeditation, the appellate court may
look to the circumstances surrounding the killing. See, e.g., State v. Bland, 958 S.W.2d 651,
660 (Tenn. 1997); State v. Coulter, 67 S.W.3d 3, 72 (Tenn. Crim. App. 2001). Such
circumstances may include “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.” Bland, 958 S.W.2d at 660.

               Here, the proof adduced at trial overwhelmingly established that the defendant
savagely and severely beat the victim throughout three separate rooms of the victim’s house.
The defendant admitted that, even after the victim stopped fighting back, he continued the
beating, and he told Investigator Booker that “in the middle of while I was beating [the
victim] up,” he bound the victim’s hands and feet with tape. Although the defendant denied
stabbing the victim, claiming instead that Ms. Sutton stabbed the victim after the victim had
been placed inside the plastic container, Doctor Lochmuller testified that all of the victim’s
injuries had been inflicted prior to the victim’s being placed into the container. As this court
has previously stated, “[i]t is the jury’s province, as the trier of fact, to determine which parts
of the testimony and evidence to credit, and there is no requirement that a jury must wholly
accept or reject a witness’s account of events.” State v. Gene Shelton Rucker, Jr., No.
E2002-02101-CCA-R3-CD, slip op. at 6 (Tenn. Crim. App., Knoxville, Dec. 9, 2004) (citing
State v. Bolin, 922 S.W.2d 870, 876 (Tenn. 1996)). Doctor Lochmuller opined that the
victim died from a combination of “the stab wound to the left side of the neck, the crushing
injury to the larynx, and potentially the tearing of the liver.” Following the beating and
restraint of the victim, the defendant and Ms. Sutton stole items from his home, some of

                                               -14-
which they sold that very evening prior to purchasing liquor from a liquor store. The
infliction of countless and repeated blows on an unarmed victim, the particular cruelty of the
killing, and the defendant’s calmness after the killing support a finding that he did so
intentionally and with premeditation.

                                        Felony Murder

               As charged in this case, felony murder is “[a] killing of another committed in
the perpetration of or attempt to perpetrate any . . . theft [or] kidnapping.” T.C.A. § 39-13-
202(a)(2). Kidnapping is “false imprisonment . . . under circumstances exposing the other
person to substantial risk of bodily injury.” Id § 39-13-303(a). Finally, “[a] person commits
the offense of false imprisonment who knowingly removes or confines another unlawfully
so as to interfere with the other’s liberty.” Id. § 39-13-302(a).

                 It is well established that before a killing will “fall within the definition of
felony murder, [it] must have been ‘done in pursuance of the unlawful act, and not collateral
to it.’” State v. Banks, 271 S.W.3d 90, 140 (Tenn. 2008) (citing State v. Rice, 184 S.W.3d
646, 663 (Tenn. 2006) (quoting Farmer v. State, 296 S.W.2d 879, 883 (1956))). “In other
words, ‘The killing must have had an intimate relation and close connection with the felony
. . . , and not be separate, distinct, and independent from it[.]’” Farmer, 296 S.W.2d at 883
(quoting Wharton on Homicide, § 126 (3rd ed.)); see also, e.g., Banks, 271 S.W.3d at 140;
State v. Thacker, 164 S.W.3d 208, 223 (Tenn. 2005). To satisfy the requirement of “an
intimate relation and close connection,” “the killing ‘may precede, coincide with, or follow
the felony and still be considered as occurring ‘in the perpetration of’ the felony offense, so
long as there is a connection in time, place, and continuity of action.’” Thacker, 164 S.W.3d
at 223 (quoting State v. Buggs, 995 S.W.2d 102, 106 (Tenn. 1999)). Moreover, “there should
be a causal connection between the killing and the felony.” Buggs, 995 S.W.3d at 106 (citing
Farmer, 296 S.W.2d at 884; State v. Severs, 759 S.W.2d 935, 938 (Tenn. Crim. App. 1988)).
Requiring a causal connection between the homicide and the underlying felony promotes the
deterrent effect of the rule by precluding a first degree murder conviction for “killings which
are collateral to and separate from the underlying felony.” State v. Pierce, 23 S.W.3d 289,
295 (Tenn. 2000). “Moreover, requiring a close nexus between the [underlying felony] and
the killing is particularly appropriate given that the felony murder rule is ‘a legal fiction in
which the intent and the malice to commit the underlying felony is ‘transferred’ to elevate
an unintentional killing to first-degree murder.’” Id. (quoting Buggs, 995 S.W.2d at 107).

              A killing will be considered to have been committed “in the perpetration of”
the underlying felony “where the homicide is so closely connected with the underlying felony
as to be within the res gestae thereof, or where the homicide is so linked to the felony as to
form one continuous transaction.” Buggs, 995 S.W.3d at 106 (citing 40 Am. Jur. 2d

                                              -15-
Homicide § 67 (1999)). “The res gestae embraces not only the actual facts of the transaction
and the circumstances surrounding it, but also the matters immediately antecedent to the
transaction and having a direct causal connection with it, as well as acts immediately
following it and so closely connected as to form in reality a part of the occurrence.” State
v. Patrick Wingate, No. M1999-00624-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App.,
Nashville, May 25, 2000) (citing Payne v. State, 406 P.2d 922, 925 (Nev. 1965)). When the
predicate felony is theft, the killing must be “closely connected to the initial taking of the
property in time, place, causation, and continuity of action.” See Pierce, 23 S.W.3d at 296
(citation omitted).

               With respect to the conviction of felony murder in perpetration of kidnapping,
the proof at trial established that the defendant, by his own admission, bound the victim’s
hands and feet with tape and then continued his beating of the victim. The fact that the
thermal pants wrapped around the victim’s hands underneath the tape were soaked with
blood indicated that the victim was still alive when he was bound. The defendant also
admitted to placing the defendant inside the plastic container. Doctor Lochmuller testified
that both the blood in the container and the fact that the blood was clotted indicated that the
victim was still alive when he was placed in the container. The evidence supports the
defendant’s conviction of felony murder in perpetration of kidnapping.

               With respect to the defendant’s conviction of felony murder in perpetration of
a theft, the defendant admitted that, after beating the victim and confining him inside the
plastic container but before leaving the victim’s property, he and Ms. Sutton stole numerous
items from the victim’s house. This theft was clearly “closely connected” in “time, place,
causation, and continuity of action” to the murder of the victim, see id, and, thus, the
evidence supports the defendant’s conviction for this offense as well.

                             Especially Aggravated Kidnapping

               Although the defendant does not directly raise the issue of the sufficiency of
the convicting evidence of especially aggravated kidnapping, he does generally challenge the
sufficiency of the evidence, and we will thus address these convictions as well. “Especially
aggravated kidnapping is false imprisonment, as defined in § 39-13-302: . . . [a]ccomplished
with a deadly weapon or by display of any article used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon . . . or . . . [w]here the victim suffers serious
bodily injury.” Id. § 39-13-305(a)(1), (4). In this case, the defendant was charged with and
convicted of four alternative counts of especially aggravated kidnapping, alleging removal
of the victim accomplished with a deadly weapon; confinement accomplished with a deadly
weapon; removal resulting in serious bodily injury; and confinement resulting in serious
bodily injury. The proof adduced at trial established that the defendant bound the victim’s

                                             -16-
hands and feet and placed him inside a plastic storage container, which was later sealed shut
and concealed inside a locked shed. Doctor Lochmuller testified that all of the victim’s
injuries, which would include the savage beating and the stabbing with the knife, a deadly
weapon, had been inflicted prior to the victim’s being placed inside the plastic container.
Although the defendant denied stabbing the victim, the jury was free to reject this testimony.
See Gene Shelton Rucker, Jr., No. E2002-02101-CCA-R3-CD, slip op. at 6. Thus, the
evidence established that the victim was both removed and confined by use of a deadly
weapon, and such removal and confinement clearly resulted in serious bodily injury.
Affording the State the strongest legitimate view of the evidence and deferring to the
credibility determinations made by the jury, we conclude that the evidence supports the
defendant’s convictions of especially aggravated kidnapping.

               In conclusion, the evidence is sufficient to support the defendant’s convictions
of first degree murder, felony murder, and especially aggravated kidnapping. Accordingly,
we affirm the judgments of the trial court.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                             -17-
