                                                                                          07/31/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 April 18, 2017 Session

            STATE OF TENNESSEE v. SUSAN LYNETTE BAKER

                Appeal from the Circuit Court for Sequatchie County
                       No. 11CR67     Buddy D. Perry, Judge


                            No. M2016-00434-CCA-R3-CD


The defendant, Susan Lynette Baker, appeals her Sequatchie County Circuit Court jury
convictions of felony murder, especially aggravated robbery, and setting fire to personal
property, claiming that the trial court erred by refusing to suppress the pretrial statement
she provided to the police, the evidence of her theft of property from the victim’s
residence, and the surveillance video from a motel; that the trial court erred by denying
her motion to sever the arson charge from the remaining charges; that the evidence was
insufficient to support her convictions of felony murder and especially aggravated
robbery; and that “the very nature” of the felony murder statute violates principles of due
process. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Samuel F. Hudson, Dunlap, Tennessee, for the defendant, Susan Lynette Baker.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; J. Michael Taylor, District Attorney General; and Steven H. Strain,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              A Sequatchie County Circuit Court jury convicted the defendant of felony
murder, especially aggravated robbery, and setting fire to personal property in relation to
the death of the victim, Clifford Carden, Jr., as well as the theft of his property and the
subsequent attempt to cover up the crime.
              On February 3, 2011, Larry Eggert happened upon a body floating in the
river in the area of Pickett’s Bridge while out looking for cans on East Valley Road in
Sequatchie County. Sequatchie County Sheriff’s Department (“SCSD”) Detective Jody
Lockhart responded to the subsequent 9-1-1 call reporting the discovery. He observed
blood and drag marks on the river bank. On that same day, SCSD Deputy Danny Hall
“[f]ound a burned car that was . . . out in the woods” just north of Dunlap. An accelerant
had been used to burn the car completely to its frame. Deputy Hall discovered a
handicapped driver placard “to the right side of the passenger door on the outside of the
car.” The number from the placard led Detective Lockhart to the victim’s driver’s license
photograph, which he then used to identify the victim’s body.

               An autopsy established that the victim died from a single gunshot wound to
the head. “The bullet traveled from right to left, slightly upward and from the back to the
front of his head.” Stippling around the entrance wound indicated that “the muzzle of the
gun was anywhere from approximately two to three inches to two to three feet” away
from the victim’s head when fired.

              After identifying the victim, Detective Lockhart went with the victim’s
estranged wife, Cindy Carden, to the victim’s home, where he observed a propane tank
pushed against a wall heater that had been left in the on position. Ms. Carden confirmed
to Detective Lockhart that “NASCAR memorabilia and different trinkets” were missing
from the home. Ms. Carden found a photograph of the defendant and the victim that had
been taken at the beach.

              Surveillance video from the Mountain Valley Inn and Suites in Dunlap
captured the arrival of the defendant and the co-defendant, Thomas Brian Bettis, just after
5:00 p.m. on February 2, 2011, in the victim’s car. The defendant paid three nights’
lodging using cash. Surveillance video also captured the defendant carrying NASCAR
memorabilia into the motel.

              On that same day, the co-defendant went to the Phillips 127 Shell Station
near the motel and asked store clerk Stanley Labron Hobbs “for anything to put gas in,”
and Mr. Hobbs gave him “a blue Maxwell House Coffee jug.” Mr. Hobbs saw the co-
defendant later that same night and “noticed that his facial hair was singed, and it looked
like what appeared to be blood on his blue jeans.”

              Randy Griffith encountered the defendant and co-defendant walking on Old
Union Road on the evening of February 2, 2011. He gave the pair a ride to the Walmart
near the Mountain Valley Inn and Suites. Surveillance video from the Walmart captured
the pair shopping in the clothing section and then checking out shortly after 7:00 p.m. A
receipt obtained from the defendant’s purse following her arrest indicated a cash purchase
                                            -2-
in excess of $300. Items recovered from the dumpster behind the motel included “one
bag in particular that had a bunch of Wal-Mart bags in it” as well as “a pill bottle inside it
that belonged to our victim and also had blood on it.”

              Officers learned that the defendant sold a nine millimeter handgun to bar
owner Gary Harding in the early part of February 2011. Tennessee Bureau of
Investigation (“TBI”) testing established that the bullet recovered from the victim’s head
during his autopsy was fired by the gun the defendant sold to Mr. Harding.

              The defendant was arrested at a residence in Hamilton County on February
8, 2011. Following her arrest, TBI Agent Mark Wilson advised the defendant of her
constitutional rights, and the defendant signed a written waiver of those rights before
providing a video recorded statement to Agent Wilson and Detective Lockhart. The
recording was exhibited to Agent Wilson’s testimony and played for the jury. The
defendant told them that she had maintained romantic relationships with both the victim
and the co-defendant at different points. During her relationship with the victim, the
victim had taken care of the defendant and taken her on a number of trips. In the days
before the victim’s murder, the defendant and the co-defendant had a falling out, and the
defendant called the victim to pick her up. The two went to dinner and then out
“drinking” before she spent the night at his house. On the day of the murder, the
defendant and the victim met the co-defendant at a store, and the three rode around for a
while. The defendant, who had armed herself with the murder weapon before getting into
the car, eventually acknowledged that she and the co-defendant had planned to rob the
victim for pills and money. The defendant claimed that the victim became aggressive
with her as they drove along Gulf Road in Cartwright in Sequatchie County and began
calling her names. She said, “I snapped. I did. I snapped.” She shot the victim in the
side of the head, and the car rolled into a fence. Detective Lockhart traveled to the area
described by the defendant and found “an area that was consistent with a vehicle running
off the road, and it was consistent with a small farm fence post and a small sapling tree
that had been hit.”

               After the defendant shot the victim, she and the co-defendant moved the
victim’s body into the passenger’s seat, and the defendant drove the car to the river. The
defendant demonstrated for Agent Wilson and Detective Lockhart how she parked the
vehicle before she and the co-defendant dragged the victim’s body into the river. She
said that she took just over $1,000 from the victim before they discarded his body. They
then drove the victim’s car to his residence, where they used the victim’s keys to enter
the home and steal NASCAR memorabilia. They then drove to the Mountain Valley Inn
and Suites. She said that the co-defendant obtained the gasoline and directed her as she
drove the car to a remote area so that they could burn it. The defendant admitted that
they took the victim’s pills and that she sold the murder weapon.
                                             -3-
              The defendant’s father and son testified that she had become addicted to
prescription medication and that she was addicted to that medication at the time of the
murder. Doctor Robert Brown, a neuropsychologist who treated the defendant, testified
that the defendant had been treated for mental illness throughout her life and that she
suffered from “neuro-cognitive deficits and would have qualified for special education
services.” Doctor Brown testified that the defendant’s neurobehavioral problems caused
her to become a “yea sayer” so that she could “pretend that she is normal . . . because she
doesn’t know to handle things.”

              Based upon this evidence, the jury convicted the defendant as charged. The
trial court imposed a sentence of life imprisonment for the defendant’s conviction of
murder and, following a sentencing hearing, imposed respective sentences of 15 years
and 2 years for the defendant’s convictions of especially aggravated robbery and setting
fire to personal property. The court ordered all of the sentences to be served
concurrently.

              Following the denial of her timely motion for new trial, the defendant filed
a timely notice of appeal. In this appeal, the defendant challenges the trial court’s rulings
denying her motions to suppress the statement she made to Agent Wilson and Detective
Lockhart, the evidence that she stole items from the victim’s residence following the
murder, and the surveillance video from the Mountain Valley Inn and Suites. The
defendant also challenges the trial court’s denial of her motion to sever the charge of
setting fire to personal property from the charges of felony murder and especially
aggravated kidnapping. Additionally, the defendant contends that the evidence was
insufficient to support her convictions of felony murder and especially aggravated
robbery and that Code section 39-13-202 violates principles of due process because it
contains no mens rea requirement for felony murder. We consider each claim in turn.

                                  I. Motions to Suppress

           A. Defendant’s Statement to Agent Wilson and Detective Lockhart

               The defendant asserts that the trial court erred by refusing to suppress the
video recorded statement she gave to Agent Wilson and Detective Lockhart following her
February 8, 2011 arrest, claiming that she did not voluntarily, knowingly, and
intelligently waive her constitutional right to remain silent and that the statement was not
voluntarily given. Specifically, she contends that her neurocognitive deficits as described
by Doctor Brown as well as her voluntary intoxication on prescription medication
prevented her from fully understanding her right to remain silent or appreciate the
consequences of making a statement to the police. She also argues that her
                                             -4-
neurocognitive deficits caused her to go along with the “forceful questioning” of the
officers.

              At the hearing on the defendant’s motion to suppress her statement, Agent
Wilson testified that he provided Miranda warnings to the defendant immediately
following her arrest. He said that the defendant did not ask for an attorney at that or any
other time following her arrest. Sequatchie County Sheriff Ronnie Hitchcock and his
wife, Linda Hitchcock, who worked as a reserve deputy with the SCSD, transported the
defendant to the jail, where she waited in an interview room with Ms. Hitchcock until
Agent Wilson and Detective Lockhart arrived. Agent Wilson provided Miranda
warnings to the defendant for a second time and went over the written rights waiver with
her. He recalled that the defendant asked questions about the form before signing it. The
defendant specifically asked for confirmation that she did not have to talk to detectives
and that she could ask for an attorney at any time during her questioning. She also asked
if it would be held against her if she started answering questions and then asked to stop
and whether she had to sign the rights waiver. Agent Wilson said that he initially read
the form to the defendant and that she asked if she could read it herself. The defendant
eventually signed the form.

              Agent Wilson said that the defendant “explained things very specifically”
when asked to relate the circumstances of the crime and that she provided details that
could only have been known to the killer. He confirmed that the defendant appeared
lucid at all times during the interview and that she did not appear to be under the
influence of narcotics. He said that she “appeared to be of sound mind to” him. During
the interview, the defendant moved around to demonstrate how she shot the victim, and
he did not notice anything unusual in her gait as she did so. The defendant was not
rambling or incoherent. She gave an approximate timeline of events and recalled the
exact amount of money they had taken from the victim. The video recording of the
defendant’s statement was admitted into evidence and reviewed by the trial court.

               During cross-examination, Agent Wilson maintained that he did not believe
the defendant was impaired during the interview, and he could not say why the booking
sheet listed the defendant as under the influence. He said that he did not consider waiting
overnight to question the defendant. He acknowledged that the defendant initially
insisted that the co-defendant had killed the victim but later admitted that she had shot
him. Agent Wilson insisted that the defendant’s initial deflection suggested to him that
“[s]he was competent enough to be deceitful and lie about what had happened.” Agent
Wilson conceded that despite his having shown the defendant his badge and having
identified himself as a TBI agent at the beginning of the interview, the defendant asked if
he was a lawyer at the end of the interview. The defendant told him that she did not

                                            -5-
remember seeing his badge but did remember seeing him. She then asked, “‘Now, when
am I suppose[d] to have a lawyer?’”

              Detective Lockhart testified that, based upon his training and experience, he
did not believe the defendant to be under the influence of drugs or alcohol at the time of
her arrest. He said that he had no prior knowledge of the defendant’s history of drug
abuse. Detective Lockhart said that he did not find the defendant’s behavior unusual and
found that she spoke coherently throughout the interview. During cross-examination, he
denied that the defendant’s demeanor was slow or subdued.

              Ashley Hickey, who shared a cell with the defendant for approximately
three weeks while the two women were incarcerated in Sequatchie County, testified that
the defendant had revealed to her the details surrounding the victim’s murder as well as
the defendant’s plan to avoid being found competent to stand trial. Ms. Hickey said,
“She’d have tantrums, her moods would vary depending on officers coming in or out.
There was one point where she went to Erlanger due to her kidneys where she had cut
herself to where there was blood in her urine.”

              Ms. Hickey acknowledged having previously pleaded guilty to filing a false
police report. She also admitted that, following the murder, she and her boyfriend, Doyle
Hatfield, who was a friend of the co-defendant’s, stayed at the Mountain Valley Inn and
Suites across the hall from the defendant and co-defendant. She denied knowing the co-
defendant “personally”; having tried to purchase pain pills from the co-defendant; having
sent text messages to the co-defendant’s sister offering to “help him”; and having told the
defendant that the co-defendant came to the room she shared with her boyfriend with a
rose in his mouth.

              The defendant’s father, Raymond White, testified that the defendant began
taking pain medication for kidney stones when she was 10 years old and that she
eventually became addicted to the medication and began abusing it. He said that her
abuse of the medication affected her memory. After the defendant’s arrest, Mr. White
spoke with Sheriff Hitchcock, who told him that the defendant “was in bad shape, she
was asleep, and they w[ere] going to take her over there and get her in bed and assured
me that she would have a lawyer present in her condition.” The sheriff emphasized to
Mr. White that the defendant was “[s]toned.” Mr. White acknowledged that he did not
see the defendant on the day she was arrested.

             SCSD Corrections Officer Stacy Slaven testified that she assisted in the
process of booking the defendant into the jail following her interview.          She
acknowledged having steadied the defendant to obtain her fingerprints and photograph.
She said that the defendant “was falling asleep.” Officer Slaven was aware that the
                                            -6-
defendant’s booking sheet reflected that the defendant appeared to be under the influence
of drugs at the time of her booking. Upon questioning by the court, she described the
defendant as “tired, very tired.”

               Deputy Chief Clint Walker, the jail administrator, was not present during
the defendant’s booking but saw her on the following morning. He said that the
defendant was held for the first few days “in a medical cell there in the front so that
[jailers] could maintain close observation” because he was initially concerned that the
defendant “may be really really distraught about her charges and might want to harm
herself or something like that,” saying that it was his practice to give defendants charged
with such serious crimes “a few days to settle down” before they are placed in the general
population. He acknowledged that the defendant slept “[p]retty much around the clock
for three days” despite being held in a location where the lights were on 24 hours a day
and there was “constant traffic day and night, doors slamming, people talking, stuff going
on.” He said that the defendant did not display “any signs of withdrawal” from drugs and
instead “just slept.”

               Doctor Brown testified that he began treating the defendant after the murder
at the request of her primary care physician, who had diagnosed the defendant with
“schizo [a]ffective disorder, bipolar type with psychotic features.” Doctor Brown said
that he did not observe “the level of schizophrenia that would match that diagnosis.”
Instead, his testing showed that the defendant was experiencing neurocognitive deficits,
including difficulties with executive function such as working memory, that Doctor
Brown believed to be caused by a brain malformation. Doctor Brown testified that he
had watched the video recording of the defendant’s interview with Agent Wilson and
Detective Lockhart and that he had observed “differences in her performance during the
interrogation” that he had “never seen at any other time.” He said that he observed
“labilia,” which he described as an inability of the defendant to manage her emotions, and
“disinhibition,” which he described as “the freedom to disclose and be uninhibited,” both
of which were out of character for the defendant. He also noticed “some possible slurred
speech.” Doctor Brown said that his “very first impression” was that the defendant was
under “some influence . . . from some kind of psychoactive substance.”

             Doctor Brown testified that, at the request of the defendant’s attorney, he
used two “instruments” to assess the defendant’s “Miranda capabilities,” and found that
“she had considerable difficulty in all eight examination sessions using either one of
those instruments.” Upon questioning by the court, Doctor Brown admitted that nothing
in the defendant’s demeanor as displayed on the video recording would have led Agent
Wilson or Detective Lockhart to believe that the defendant did not comprehend and
voluntarily waive her rights, saying, “[T]hey had nothing that they could have seen or
perceived that would have said she lacks the capacity to appreciate what she has signed
                                            -7-
here, which is waiving her Miranda Rights, the written statement, that she has read and
signed, and their explanation to her.”

               Doctor Brown opined that, because of her personality, the defendant would
tend to “acquiesce and do what pleases [the police] and not upset them, reduce any
frustration.” He conceded, however, that he did not “pick that [tendency] up so strongly”
when watching the interrogation video. Doctor Brown said the defendant would allow
the officers to “take the lead and run the show and she will fit whatever . . . she thinks
they want to hear.” Doctor Brown insisted that the defendant was not malingering and
instead had poor working memory. He testified that, had he been in the interview room,
he would not have identified the defendant’s issues with competency because he did not
“realize there’s these impairments” until he had performed a litany of tests. Upon
questioning by the court, Doctor Brown confirmed the voluntariness of the defendant’s
statement, saying, “She voluntarily made the statements, yes, Your Honor.” He added,
however, that the defendant “doesn’t comprehend the implications of then cooperating
with law enforcement in the interrogation.”

              During cross-examination, Doctor Brown agreed that he saw no indication
that the defendant was so impaired that she did not know what she was doing when she
waived her rights and provided the statement in this case. He agreed that nothing would
have indicated to either officer that the defendant lacked the mental capacity to waive her
rights and provide a statement, noting that the defendant’s mental issue is “[s]o subtle
that [he] missed [it] with nine months of psychotherapy” even though “the psychological
tests” showed “some real serious problems.” He added that he also “[d]idn’t get it out of
the video seeing it five times . . . blown . . . up on a 60-inch screen” with “an equalizer to
modify the audio.”

             At the conclusion of the hearing, the trial court denied the defendant’s
motion to suppress, ruling,

              [I]f you take a totality of circumstances standard and apply
              that, the fundamental issue . . . is the power of the state being
              used fairly when attempting to get information from a
              defendant, and to put an officer in a position to have to
              become some sort of mental health evaluator in order to make
              that decision, I think is really above my pay grade level. I
              think this [is] an admissible statement. I’m going to rule that
              it’s admissible . . . .

              A trial court’s factual findings on a motion to suppress are conclusive on
appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215,
                                             -8-
217 (Tenn.2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of
credibility, the weight and value of the evidence, and the resolution of conflicting
evidence are matters entrusted to the trial judge, and this court must uphold a trial court’s
findings of fact unless the evidence in the record preponderates against them. Odom, 928
S.W.2d at 23; see also Tenn. R. App. P. 13(d). The application of the law to the facts,
however, is reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn.
1998).

               The Fifth Amendment to the United States Constitution provides that “no
person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding “the Fifth
Amendment’s exception from compulsory self-incrimination” applicable to the states
through the Fourteenth Amendment). This means that, to pass federal constitutional
muster and be admissible at trial, a confession must be free and voluntary and not
“‘extracted by any sort of threats or violence, nor obtained by any direct or implied
promises, . . . nor by the exertion of any improper influence’” or police overreaching.
Bram v. United States, 168 U.S. 532, 542-43 (1897) (citation omitted). The rule is
equally applicable to confessions given during custodial interrogations following
appropriate provision of Miranda warnings, see State v. Kelly, 603 S.W.2d 726, 728
(Tenn. 1980), and those provided before the defendant has been placed in custody, see
Arizona v. Fulminante, 499 U.S. 279, 286-88 (1991). To determine voluntariness, the
reviewing court must examine the totality of the circumstances surrounding the
confession to determine “whether the behavior of the State’s law enforcement officials
was such as to overbear [the defendant’s] will to resist and bring about confessions not
freely self-determine–a question to be answered with complete disregard of whether or
not [the defendant] in fact spoke the truth.” Rogers v. Richmond, 365 U.S. 534, 544
(1961).

               Article I, section 9 of the Tennessee Constitution provides that “in all
criminal prosecutions, the accused . . . shall not be compelled to give evidence against
himself.” Tenn. Const. art. I, § 9. “The test of voluntariness for confessions under
Article I, § 9 of the Tennessee Constitution is broader and more protective of individual
rights than the test of voluntariness under the Fifth Amendment.” State v. Smith, 933
S.W.2d 450, 455 (Tenn. 1996) (citing State v. Stephenson, 878 S.W.2d 530, 545 (Tenn.
1994)); see also State v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005). “The critical
question is ‘whether the behavior of the state’s law enforcement officials was such as to
overbear [the defendant’s] will to resist and bring about confessions not freely self-
determined.’” Smith, 933 S.W.2d at 455-56 (quoting Kelly, 603 S.W.2d at 728 (internal
citation and quotation marks omitted)). Moreover, because of the extra protection
afforded by the state constitution, “[f]or the relinquishment of rights to be effective, the
defendant must have personal awareness of both the nature of the right and the
                                             -9-
consequences of abandoning his rights.” Thacker, 164 S.W.3d at 249 (citing Stephenson,
878 S.W.2d at 544–45). Accordingly, “the totality of the circumstances must reveal ‘an
uncoerced choice and the required level of comprehension before a court can properly
conclude that Miranda rights have been waived.’” State v. Blackstock, 19 S.W.3d 200,
208 (Tenn. 2000) (quoting Stephenson, 878 S.W.2d at 545; Moran v. Burbine, 475 U.S.
412, 421 (1986)).

               An accused “may knowingly and intelligently waive the right against self-
incrimination only after being apprised of” the constitutional rights to remain silent and
to counsel during interrogation. Thacker, 164 S.W.3d at 248. As with the voluntariness
of a statement, the trial court “may conclude that a defendant voluntarily waived his
rights if, under the totality of the circumstances, the court determines that the waiver was
uncoerced and that the defendant understood the consequences of waiver.” Id. (citing
Stephenson, 878 S.W.2d at 545).

              When the voluntariness of a statement given to police is
              challenged based on the defendant’s competency to waive the
              rights provided by Miranda, the determinative issue is
              “whether the defendant had the capacity in the first place to
              form a will of his own and to reject the will of others.”

Thacker, 164 S.W.3d at 249 (quoting State v. Benton, 759 S.W.2d 427, 431 (Tenn. Crim.
App. 1988)). “Among the circumstances courts have considered are the defendant’s age,
background, level of functioning, reading and writing skills, prior experience with the
criminal justice system, demeanor, responsiveness to questioning, possible malingering,
and the manner, detail, and language in which the Miranda rights are explained.”
Blackstock, 19 S.W.3d at 208. Importantly, “mental impairments” are simply “factors
that must be considered along with the totality of the circumstances,” and “‘no single
factor, such as IQ, is necessarily determinative in deciding whether a person was capable
of knowingly and intelligently waiving’” constitutional protections. Id. (quoting
Fairchild v. Lockhart, 744 F. Supp. 1429, 1453 (E.D. Ark. 1989)).

             In our view, the trial court did not err by denying the motion to suppress in
this case.    Although Doctor Brown testified that the defendant suffered from
neurocognitive deficits that prevented her from fully comprehending the consequences of
waiving her constitutional rights to cooperate with the police, he agreed that she
voluntarily waived those rights and voluntarily provided the statement in this case. She
was twice provided with Miranda warnings and nevertheless agreed to waive them, once
in writing. Having reviewed the video recording of the defendant’s statement, we agree
with the court and with Doctor Brown that nothing in the recording suggests that the
defendant was incapable of voluntarily waiving her rights and providing a statement in
                                            -10-
this case. Before signing the written waiver of her rights, the defendant, who had
obtained a GED, asked the officers questions about the form. Despite the defendant’s
claim to the contrary, the video does not evince that she was “severely impaired and/or
intoxicated” during the interview. The defendant appears lucid and coherent throughout
her interaction with the officers. Although she initially claimed that the co-defendant
shot the victim, she later admitted that she had done so, providing a detailed explanation
and a physical demonstration of how the shooting occurred. The defendant assisted the
officers in creating a diagram of the location where the victim’s body was dumped. No
evidence suggests that the officers coerced the defendant. In sum, the totality of the
circumstances supports the trial court’s conclusion that the defendant possessed the
capacity to voluntarily and knowingly waive her constitutional rights and provide a
statement in this case.

                      B. Evidence of Theft from Victim’s Residence

              The defendant contends that the trial court erred by refusing to exclude
evidence that she and the co-defendant took items from the victim’s residence following
his murder. The State asserts that the trial court did not err.

              Prior to trial, the defendant moved the trial court to exclude this evidence,
arguing that it was irrelevant or, in the alternative, unfairly prejudicial. As the State
correctly points out, the trial court’s ruling with regard to this motion does not appear to
be included in the record on appeal. At the hearing on the motion for new trial, the trial
court simply indicated that it had considered and ruled on the motion prior to trial and
that it would stand by its earlier ruling. The record, however, does not indicate that the
defendant ever actually argued her motion or that the trial court ever actually ruled on it.
Additionally, the single reference to the record provided in the defendant’s brief is not to
the court’s ruling on her motion. Under these circumstances, the defendant has waived
plenary consideration of this issue. 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.”).

               C. Video Surveillance from Mountain Valley Inn and Suites

              The defendant asserts that the trial court erred by admitting into evidence
video surveillance from the Mountain Valley Inn and Suites, arguing that “the increased
speed of the recording was highly prejudicial” to the defendant because it prevented the

                                            -11-
jury from observing any evidence of the defendant’s alleged impairment. The State
contends that the trial court did not err by admitting the video surveillance.

               Prior to trial, the defendant moved the trial court to exclude the video
surveillance because it would only play at a higher than normal rate of speed. The
court’s ruling does not appear in the record. During trial, the defendant again objected to
the video, and the court overruled the objection, noting a “conversation in chambers this
morning regarding the video.” The trial court did, however, provide the following
instruction to the jury regarding the video:

              Ladies and gentlemen, I want to make sure that you
              understand something. The speed of the videos is not real
              time. It is faster than real time and so we don’t want to . . .
              present any confusion that people are moving faster . . . it’s
              the video itself that’s doing that.

               Questions concerning evidentiary relevance rest within the sound discretion
of the trial court, and this court will not interfere with the exercise of this discretion in the
absence of a clear abuse appearing on the face of the record. See State v. DuBose, 953
S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993);
State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). An abuse of discretion occurs when the
trial court applies an incorrect legal standard or reaches a conclusion that is “illogical or
unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204
S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.
2006)).

              Relevant evidence is evidence “having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. “Evidence which
is not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed
relevant, it may be still be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence,” Tenn. R. Evid. 403.

              Here, the surveillance video showed the defendant and co-defendant
arriving at the motel driving the victim’s vehicle and carrying items taken from the
victim’s home into the motel. The video also showed the defendant paying for their room
with cash ostensibly taken from the victim. In consequence, the surveillance video was
certainly relevant to the charged offenses. Although the video played at greater-than-
normal speed, the trial court’s instruction cured any possible prejudice from the speed of
                                              -12-
the video.

                                       II. Severance

              The defendant asserts that the trial court erred by refusing to sever the
charge of setting fire to personal property from the charges of felony murder and
especially aggravated robbery. She contends that because that charge was far less serious
than the other two charges and because most of the evidence regarding the burning of the
victim’s car indicated that the co-defendant was responsible for the burning, severance of
the offense was necessary “to ensure that [the defendant] was not unfairly judged for the
more serious offenses based upon her limited involvement in an act that was an
afterthought of more egregious behavior.” The defendant provides no authority for her
assertion.

               We review the propriety of a trial court’s decision regarding the
consolidation of indictments or severance of charges for abuse of discretion. See State v.
Garrett, 331 S.W.3d 392, 401 (Tenn. 2011) (citing Spicer v. State, 12 S.W.3d 438, 442
(Tenn. 2000)); see also State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). “A trial court
abuses its discretion when it applies incorrect legal standards, reaches an illogical
conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies
reasoning that causes an injustice to the complaining party.” Garrett, 331 S.W.3d at 401
(citing State v. Jordan, 325 S.W.3d 1, 39 (Tenn. 2010)).

              “Before a trial court may deny a severance request, it must hold a hearing.”
State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008). Because the determination whether
multiple offenses should be joined or separated for trial establishes a format for trial, the
issue obviously must be presented and resolved before trial. See Garrett, 331 S.W.3d at
403; see also Tenn. R. Crim. P. 13(b) (providing that a trial court may order severance of
offenses before trial); Tenn. R. Crim. P. 14(a)(1)(A) (providing that a defendant, except
in the event of a later arising ground, shall move to sever offenses “before trial”). The
trial court must base its decision regarding severance on “the evidence and arguments
presented at the hearing,” and, as a result, our review on appeal is limited “to that
evidence, along with the trial court's findings of fact and conclusions of law.” Spicer, 12
S.W.3d at 445; see also Garrett, 331 S.W.3d at 404 (where supreme court conducted its
“analysis on the basis of the evidence adduced at [the d]efendant’s trial instead of only
the evidence adduced at the hearing” because trial court failed to hold a pretrial hearing).

               At the hearing on the defendant’s motion to sever the offenses, neither
party presented any proof. The State argued that joinder of the offenses was mandatory,
and the trial court agreed.

                                            -13-
              Here, all the offenses were charged in a single indictment. Tennessee Rule
of Criminal Procedure 8 governs both mandatory and permissive joinder of offenses.
Pursuant to that rule, offenses must be joined if they are:

                     (A) based on the same conduct or arise from the same
                     criminal episode;
                     (B) within the jurisdiction of a single court; and
                     (C) known to the appropriate prosecuting official at the
                     time of the return of the indictment(s), presentment(s),
                     or information(s).

Tenn. R. Crim. P. 8(a). Offenses may be joined for trial if “(1) the offenses constitute
parts of a common scheme or plan; or (2) they are of the same or similar character.”
Tenn. R. Crim. P. 8(b). Regardless whether the joinder of offenses was mandatory or
permissive in any given case, the defendant may file for a severance of offenses pursuant
to Tennessee Rule of Criminal Procedure 14. In cases of mandatory joinder, when the
defendant asks for a severance prior to trial, “the court shall grant a severance of offenses
. . . when the court finds a severance appropriate to promote a fair determination of the
defendant’s guilt or innocence of each offense.” Tenn. R. Crim. P. 14(b)(2). In cases of
permissive joinder, “the defendant has the right to a severance of the offenses unless the
offenses are part of a common scheme or plan and the evidence of one would be
admissible in the trial of the others.” Tenn. R. Crim. P. 14(b)(1).

                In her brief, the defendant concedes that joinder of the offenses in this case
was mandatory but argues that severance was necessary “to promote a fair determination
of the defendant’s guilt.” We disagree. Evidence that the defendant and co-defendant
burned the victim’s car was relevant and admissible as evidence of their attempt to cover
up the earlier murder and robbery. That there was evidence to suggest the co-defendant
bore the bulk of responsibility for the burning offense avails the defendant no relief
because she was clearly criminally responsible for the co-defendant’s conduct. See
T.C.A. § 39-11-402(a)(2) (“A person is criminally responsible for an offense committed
by the conduct of another, if . . . [a]cting with intent to promote or assist the commission
of the offense, or to benefit in the proceeds or results of the offense, the person solicits,
directs, aids, or attempts to aid another person to commit the offense[.]”).

                                      III. Sufficiency

               The defendant asserts that the evidence was insufficient to support her
conviction of felony murder because the State failed to establish that she murdered the
victim during the perpetration of the robbery. She claims that the evidence was
insufficient to support her conviction of especially aggravated robbery because the State
                                            -14-
failed to establish that the robbery of the victim was accomplished by violence or by the
use of a deadly weapon. The State contends that the evidence was sufficient.

              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, 319 (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.

                                  A. Aggravated Robbery

              “Especially aggravated robbery is robbery as defined in § 39-13-401 . . .
[a]ccomplished with a deadly weapon; and . . . [w]here the victim suffers serious bodily
injury.” T.C.A. § 39-13-403. “Robbery is the intentional or knowing theft of property
from the person of another by violence or putting the person in fear.” Id. § 39-13-401(a).
“A person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s
effective consent.” Id. § 39-14-103(a). A deadly weapon is defined as “[a] firearm or
anything manifestly designed, made or adapted for the purpose of inflicting death or
serious bodily injury; or [a]nything that in the manner of its use or intended use is capable
of causing death or serious bodily injury.” Id. § 39-11-106(a)(5).

             The defendant argues that because the victim was dead before she took his
money and his car, the robbery could not have been accomplished by violence or by the
use of a deadly weapon. Essentially, she claims that one cannot rob a dead man. The
evidence examined in the light most favorable to the State, however, established that the
defendant and co-defendant planned to rob the victim of money and drugs and that the
defendant had armed herself to facilitate the robbery. At some point, their plans went
awry, and the defendant shot the victim before taking his money. This evidence was
                                            -15-
sufficient to support the defendant’s conviction of aggravated robbery.

                                    B. Felony Murder

               The defendant argues that the State failed to establish that she formed the
intent to rob the victim prior to or concurrent with the killing of the victim.

               As charged in this case, felony murder is “[a] killing of another committed
in the perpetration of or attempt to perpetrate any . . . robbery.” T.C.A. § 39-13-
202(a)(2). “The culpable mental state required for conviction is the intent to commit the
underlying felony, in this case, robbery or attempted robbery, not the intent to commit
murder.” State v. Wagner, 382 S.W.3d 289, 299 (Tenn. 2012) (citing T.C.A. § 39-13-
202(b)). “A killing that precedes, coincides with, or follows the commission of an
underlying felony will be considered ‘in the perpetration of’ the underlying felony, so
long as there is a connection in time, place, and continuity of action.” Wagner, 382
S.W.3d at 299 (citing State v. Pierce, 23 S.W.3d 289, 294-97 (Tenn. 2000); State v.
Buggs, 995 S.W.2d 102, 106 (Tenn. 1999)). “[W]hether a defendant intended to commit
the underlying felony, and at what point the intent existed, is a question of fact to be
decided by the jury after consideration of all the facts and circumstances.” Wagner, 382
S.W.3d at 300 (citing Buggs, 995 S.W.2d at 107). When determining whether a killing
falls within the felony murder rule, the courts of this state “have noted that consideration
of such factors as time, place, and causation is helpful.” State v. Patrick Wingate, No.
M1999-00624-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App., Nashville, May 25, 2000)
(citing State v. Lee, 969 S.W.2d 414, 416 (Tenn. Crim. App. 1997) (holding that when
victim was killed in a collision that followed a high-speed chase as defendant fled from
the scene of a robbery, the homicide occurred in the furtherance of the robbery because
flight from the scene of a crime is an integral part of the crime); State v. Brown, 756
S.W.2d 700, 702-03 (Tenn. Crim. App. 1988) (holding that the fact that robbery was
complete before the victim was killed did not make the murder “collateral” to the robbery
where defendant picked up the victim with the intent of robbing him and killed him to
prevent identification)); see also Pierce, 23 S.W.3d at 294-95.

              In the light most favorable to the State, the evidence established that the
defendant and co-defendant planned to rob the victim of drugs and money. Although the
defendant, in her pretrial statement, couched their plans to rob the victim in terms of what
she hypothetically might have done, the evidence established that the defendant knew the
victim often carried prescription pills and large amounts of cash on his person and that
she armed herself prior to getting into the car with the victim and the co-defendant. She
acknowledged taking the victim’s cash immediately after killing him, and the jury was
free to disregard her claim that doing so was merely an afterthought. Under these
circumstances, the evidence was sufficient to support the defendant’s conviction of
                                            -16-
felony murder.

               Finally, in a related issue, the defendant argues that the felony murder
statute violates principles of due process because it does not require an intent to kill. As
the defendant concedes, however, even if we were inclined to agree with her challenge,
this court is bound by the rulings of our supreme court that have rejected this precise
challenge. See, e.g., State v. Godsey, 60 S.W.3d 759, 773 (Tenn. 2001) (declaring
Godsey’s “claim that the statute violates due process by failing to include a culpable
mental state” to be “without merit”).

                                        Conclusion

              Based upon the foregoing analysis, we affirm the judgments of the trial
court.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                            -17-
