               IN THE TENNESSEE COURT OF CRIMINAL APPEALS

                               AT NASHVILLE                 FILED
                             JUNE 1994 SESSION
                                                            July 31, 1997

                                                        Cecil W. Crowson
STATE OF TENNESSEE,                     )              Appellate Court Clerk
                                        )
             Appellee,                  )     No. 01C01-9401-CR-00029
                                        )
v.                                      )     Davidson County
                                        )
MARUJA PAQUITA COLEMAN,                 )     Honorable Ann Lacy Johns, Judge
                                        )
             Appellant.                 )     (Second Degree Murder)
                                        )



For the Appellant:                      For the Appellee:

Karl Dean                               Charles W. Burson
District Public Defender                Attorney General of Tennessee
   and                                         and
John D. Wiethe                          Eugene Honea
Cynthia Burns                           Assistant Attorney General
Assistant Public Defenders              450 James Robertson Parkway
1202 Stahlman Building                  Nashville, TN 37243-0493
Nashville, TN 37201
                                        Victor S. Johnson, III
                                        District Attorney General
                                                and
                                        Roger Moore
                                        Don Himmelburg
                                        Assistant District Attorneys General
                                        Washington Square
                                        222 2nd Avenue North
                                        Nashville, TN 37201-1649




OPINION FILED: ____________________


AFFIRMED

PER CURIAM



                                OPINION
             The defendant, Maruja Paquita Coleman, appeals as of right from her

judgment of conviction in the Criminal Court of Davidson County for second degree

murder, a Class A felony. She was sentenced to twenty-five years in the custody of the

Department of Correction as a Range I, standard offender to be served consecutively to

a sentence for which she had been on parole. In this appeal as of right, the defendant

presents the following issues:

              (1) Is the evidence sufficient to support her conviction for
              second degree murder?

              (2) Did the trial court properly admit into evidence statements
              of the deceased under the dying declaration exception to the
              hearsay rule?

              (3) Did the trial court err in imposing the maximum sentence?

We hold that the evidence presented at trial is sufficient to sustain the defendant's

conviction for second degree murder and that no error exists.



              The facts surrounding this offense involve an incident in the early morning

hours of September 2, 1992, in which Sheila Annette Holman received second and third

degree burns that covered her upper torso. Her injuries eventually proved fatal and she

died ten days later. At first, both Ms. Holman and the defendant said that the fire

started as they tried to pour gasoline into Ms. Holman's car. Later, both acknowledged

that they had quarreled and that, during a struggle, Ms. Holman was doused with

gasoline. The defendant was arrested for aggravated assault, but after Ms. Holman's

death, she was indicted for second degree murder.



              Testimony at trial revealed that on the morning of September 2, 1992, Ed

Jones, the victim’s grandfather, awakened at about four o’clock. He thought he heard a

dog barking and went to look out into his yard. When he saw fires burning in his

granddaughter’s front yard, he shouted to his wife, Pearl, to call the fire department. As

                                            2
Mrs. Jones telephoned, Mr. Jones watched the victim and the defendant walk through

the shrubbery that separated the two properties and come to where he was waiting on

the back porch. When he saw that his granddaughter’s clothing was "all just strings"

and "she was sooted and dirty and raggedity," he asked her what had happened to her.

She told him that they had been putting gasoline in the carburetor and it had exploded.



                By the time Mrs. Jones stepped onto the porch, the victim was sitting

there and the defendant was standing next to her. She saw that her granddaughter had

been badly burned and that her clothing was "just melted to her skin." When her

granddaughter said, "Momma, Momma, I’m burning, I’m burning," Mrs. Jones went

back inside and called 911.1 Within moments the fire department, the paramedics and

the police arrived. As the rescue squad carried the vicitm to the waiting ambulance, the

defendant asked her if she wanted the defendant to come to the hospital. The victim

did not answer, but called "Come on. Momma, come on." Before leaving in the

ambulance, Mrs. Jones heard the defendant say that she wanted to go to the V.A.

Hospital because she had been burned as well.



                At the emergency room, Detective David Miller spoke with the victim. He

described her as in pain but lucid. He advised her that she was in "very serious

condition." She told him that she and the defendant had been in a fight, a domestic

argument, and that when the defendant had thrown gasoline on her, she was engulfed

in flames. The victim said that the defendant was smoking a cigarette at the time, but

she did not know whether the defendant had flicked a lighter or thrown the cigarette.

The detective asked her if "this was intentional," and she said yes. When he asked her

if she wanted to prosecute the defendant, she said yes.




      1
          Sheila Holman grew up in her grandparents’ home and she considered them to be her parents.

                                                  3
              Police at the scene quickly determined that the fire could not have started

the way the victim and the defendant had first described it. The hood on the

automobile was closed, and there was no sign of any fire damage under the hood or

anywhere on or near the automobile. The gasoline can was sitting in the middle of the

front yard. A patch of grass near the can was burned. Five smaller burnt patches were

scattered about the yard, but none were near the driveway where the car was parked.

Both the front and the back doors to the house were open, and the victim’s two sons

were asleep inside their bedroom. In the living room, the police found empty liquor and

beer bottles and glasses half-filled with a clear liquor. An empty, quart beer bottle was

found sitting upright near the driveway.



              When questioned, the defendant at first held to her earlier story, but she

became increasingly nervous and soon admitted that she and the victim had fabricated

the earlier version. In her written statement and in her testimony at trial, the defendant

stated that she and the victim had become acquainted at work and were lovers. After a

long bout of drinking and smoking crack cocaine, the two had argued. The defendant

wanted to break off their affair, and the victim became furious. According to the

defendant, the victim had chased her out of the back door and flung black pepper in her

face. When the defendant ran around to the front of the house, she found the victim

taking the top off the gas can that was on the front porch. The two struggled, and when

the victim grabbed the can away, gasoline slopped on her. As the defendant turned to

walk toward the car, she lit a cigarette. The victim followed her and asked her for a

light. When she turned around and extended her hand toward the victim, the victim’s

long thin blouse burst into flames. The victim ran screaming around the yard and the

defendant chased her. When the defendant caught the victim, she knocked the victim

to the ground and helped smother the flames with her hands and body. The two

women then concocted the story they first told and walked, hand in hand, to the


                                             4
grandparents’ nearby home. Throughout, the defendant maintained that they

accidentally spilled and ignited the gasoline.



              Mrs. Jones testified that during the ten days before the victim died, she

had visited her frequently. On three separate occasions, Mrs. Jones asked the victim

whether "that woman (meaning the defendant) had done this to her." Mrs. Jones

testified that, each time, her granddaughter had nodded her head as if to say yes.



              Dr. Charles Harlan, the state’s medical examiner, presented the only

medical testimony at trial. He found many second and third degree burns on the

victim’s body. There were also burns on the front of the right leg and on the posterior

aspect of the legs. The most serious burns were found on the back and front of the

torso and to the arms. Dr. Harlan stated that the victim had died of pneumonia resulting

from pulmonary edema and that, within a reasonable degree of medical certainty, the

burns caused Sheila Holman’s death.



              The defendant testified in similar fashion to the last statement that she

gave police relative to the incident being accidental. She proved that she had second

degree burns to the four fingers on her left hand, and to portions of her left arm.



                                             I

                  When the sufficiency of the evidence is questioned on appeal, the

standard of review is "whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we may not reweigh the evidence, but must

presume that the jury has resolved all conflicts in the testimony and drawn all


                                             5
reasonable inferences from the evidence in favor of the state. See State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978).



              The evidence presented at trial is sufficient to support a conviction for

second degree murder beyond a reasonable doubt. Tennessee law defines second

degree murder as the unlawful "knowing killing of another." T.C.A. §§ 39-13-201 and

-210(1). "A person acts knowingly with respect to a result of the person’s conduct when

the person is aware that the conduct is reasonably certain to cause the result." T.C.A.

§ 39-11-302(b). The jury heard evidence from which a rational trier of fact could find

beyond a reasonable doubt that after a long argument in which the victim chased the

defendant out of the house and threw pepper in her eyes, the defendant set fire to the

victim knowing that the victim’s death was reasonably certain to result.



                                             II

              The defendant complains about the admission into evidence of the

victim’s statements to Detective Miller and her grandmother at the hospital. She

contends that the statements are inadmissible hearsay, not qualifying as dying

declarations because the evidence is insufficient to establish that the victim was

conscious of her impending death at the time she made the statements. The state

responds that her consciousness of impending death may be inferred from the

character of the wounds and that, in this instance, the five photographs depicting the

nature of the wounds show that the requirements of a dying declaration are satisfied.



              As a starting point, we will discuss the burden of proof in the trial court

and the standard of appellate review of the trial court’s findings and conclusions. The

trial court conducted a jury-out hearing at the beginning of the trial in order to determine


                                             6
the admissibility of the statements. After the hearing, the trial court found that based on

the seriousness of the victim’s condition and the fact that the victim was lucid and able

to assess her condition, that the requirements for a dying declaration had been met.



              At trial, the burden was on the state as the proponent of hearsay

statements to justify their admission as exceptions to the hearsay rule of exclusion, in

this case as dying declarations. To carry that burden, the state was obligated to prove

to the trial court by a preponderance of the evidence the existence of the preliminary

facts needed to show that the statements were dying declarations. See State v.

Stamper, 863 S.W.2d 404, 405-06 (Tenn. 1993) (preponderance of the evidence

standard applies to hearsay exception preliminary facts). Essentially, this means that

the trial court must find that it is more probable than not that the preliminary facts exist.

Once the trial court makes such a finding, the evidence is admissible.



              For appellate review of such trial court findings by the preponderance of

the evidence, the standard is different. In State v. Odom, 928 S.W.2d 18 (Tenn. 1996),

our supreme court was confronted with findings of the trial court under a preponderance

of the evidence standard resulting from a motion to suppress hearing. It concluded that

“a trial court’s findings of fact in a suppression hearing will be upheld unless the

evidence preponderates otherwise.” Id. at 23. In so holding, it noted that questions of

witness credibility, the weight and value of evidence, and resolution of conflicts in the

evidence are entrusted to the trial court as the trier of fact. Id. It also stated that the

winning party in the trial court was entitled on appeal to the “strongest legitimate view of

the evidence at the hearing as well as all reasonable and legitimate inferences that may

be drawn from that evidence.” Id. Given the fact that the same preponderance

standard of proof applies to the trial court’s findings of preliminary facts in this case, we

believe that the same standard of review applies.


                                              7
                 Rule 804(b)(2), Tenn. R. Evid., provides the circumstances that allow for

the exception to the hearsay rule that is historically known as a dying declaration:

                        Statement Under Belief of Impending Death. In a
                 prosecution for homicide, a statement made by the victim while
                 believing that the declarant’s death was imminent and
                 concerning the cause or circumstances of what the declarant
                 believed to be impending death.

The rationale for admitting these statements is that the awareness of impending death

is equivalent to the sanction of an oath. See Anthony v. State, 19 Tenn. 265, 278

(1838), cited in Beard v. State, 485 S.W.2d 882, 885 (Tenn. Crim. App. 1972); State v.

Lunsford, 603 S.W.2d 745, 746-47 (Tenn. Crim. App. 1980). The rule retains the

common law limitations to the admission of dying declarations. Tenn. R. Evid.

804(b)(2), Advisory Committee Comments.



                 There are four preliminary facts to be proven for the admission of a

hearsay statement as a dying declaration: (1) the declarant must be dead, (2) the

statement must be admitted only in a homicide prosecution in which the declarant is the

victim, (3) the statement must concern the cause or circumstances of death, and (4) the

declarant must have spoken or written the statement under the belief that death was

imminent. Of the four, the knowledge of impending death provides the indicia of

reliability and truth that justifies the admission of the statement. See Neil P. Cohen, et

al., Tennessee Law of Evidence, § 804(b)(2).1, at 599 (3d ed. 1995).



                 Under Tennessee law, it is not necessary that the declarant state

unequivocally a belief that death is imminent. Awareness of impending death has been

inferred from the language and condition of the declarant,2 the facts and circumstances


        2
           Ha wk ins v. S tate, 220 Te nn. 383, 390, 417 S .W .2d 774, 777 (1 967 ); Cra wford v. State, 197
Te nn 4 11, 415, 273 S .W .2d 689, 691 (1 954 ) (told brothe r he w as d ying); He lton v. State, 195 Tenn. 36,
49, 255 S .W .2d 694, 699 (1 953 ) (told aunt she w as d ying); Sta te v. Ke els, 753 S.W .2d 140, 144 (Tenn.
Crim . App . 1988) (told son he w as g oing to leave him ); State v. Lunsford, 603 S.W .2d at 747 (told
em erge ncy room pers onn el she was going to die); Floyd v. State, 596 S.W .2d 836, 838 (Tenn. Crim. App.
197 9) (told fam ily treatm ent w as u seless); W illiam s v. State, 542 S.W .2d 827, 832 (Tenn. Crim. App.

                                                       8
surrounding the statement,3 and medical testimony concerning the seriousness of the

victim’s condition.4 The fact that a victim does not die shortly after making the

statement does not preclude its admission as a dying declaration if the requirements of

the rule are satisfied.5



                  In this case, the most telling point is the large extent to which the victim’s

body was burned. Dr. Harlan’s report reflects that sixty-five percent of the victim’s body

was involved. Although the photographs showing the victim ten days after the burns

particularly support the finding that the victim’s hospital statements to her grandmother

were dying declarations, they also are probative of the severe extent of the burns

suffered by the victim. In this respect, they support the trial court’s conclusion that the

victim was aware of her impending death at the time she talked to Detective Miller.

Under these circumstances, we cannot say that the evidence of record preponderates

against the trial court’s findings that justify the conclusion that the statements in issue

are dying declarations.



                                                            III




197 6) (told broth er an d bro ther’s friend , “Jim m ie, you k illed m e, you s hot m e.”); State v. Da rrell Fritts, No.
132 , Mo nroe County, slip op. at 4 (Te nn. C rim . App . Sep t. 25, 19 92), app. dismissed (Tenn. Feb. 1, 1993)
(told wife he was dying).

         3
           State v. Branam, 604 S.W .2d 892, 894-95 (Tenn. Crim. App. 1980) (struggling to breathe,
jerk ing an d rolling s pas m odically, died within m om ents ); Cra wford v. State, 197 Tenn. at 415-16, 273
S.W .2d at 691 (intestines p rotruding from large wou nd in a bdo m en; died within 45 m inutes ); State v.
Muse, 637 S.W .2d 468, 470 (Tenn. C rim . Ap p. 1982) (interm itten t breathin g, glaze d eyes, se m i-
con scious); Kilburn v. State, 509 S.W .2d 237, 238-39 (Tenn. Crim. App. 1973) (severe peritonitis, blue
fingernails, weakness ).

         4
           Floyd v. State, 596 S.W .2d at 838 (patien t instinctively aware of impen ding dea th); McD onald v.
State , 542 S.W .2d 388, 389 (T enn . Crim . App . 1976) (chan ce o f recovery was nil); State v. Da rrell Fritts,
slip op. at 5 (ches t filled with blood, difficult bre athing ); State v. Isaac Lydell Herron, Sh elby Co unty, slip
op. at 5 (Tenn. C rim. App. Ap r. 10, 1985) (serious doub t that victim wo uld reach hos pital alive).

         5
           Sta te v. Ke els, 753 S.W .2d at 144 (17 h ours ); State v. Lunsford, 603 S.W .2d at 746 (39 days);
Floyd v. State, 596 S.W .2d at 839 (2 da ys); Mc Do nald v. State , 542 S.W .2d at 389 (43 d ays); Kilburn v.
State , 509 S.W .2d at 239 (7 da ys); State v. Isaac Lydell Herron, slip op. at 5 (3 days).

                                                            9
              The defendant contends that the trial court erred in imposing the

maximum sentence of twenty-five years for a Range I, standard offender. She states

that the trial court applied enhancement factors (5), treating the victim with exceptional

cruelty, and (13)(B), committing a felony while on parole. See T.C.A. § 40-35-114. She

asserts that factor (5) does not apply and that the remaining factor does not justify the

sentence imposed.



              However, the record reflects that the trial court actually found the following

enhancement factors listed in T.C.A. § 40-35-114 to apply: (1) the defendant has a

previous history of criminal convictions and behavior, (5) the defendant treated the

victim with exceptional cruelty, (6) the victim’s injuries were particularly great, (8) the

defendant has a previous history of unwillingness to comply with the conditions of a

sentence involving release into the community, (10) the defendant had no hesitation

about committing a crime where the risk to human life was high, (13)(B) the felony

occurred while the defendant was on parole, and (16) the crime was committed under

circumstances under which the potential for bodily injury to a victim was great. The trial

court found no mitigating factors.



              In this respect, although the state acknowledges that factors (10) and (16)

should not apply, given that murder inherently includes these factors, it also claims that

other enhancement factors apply. The state argues that factor (9), use of an explosive

device or deadly weapon, should apply because the defendant used gasoline and that

factor (11), commission of a felony involving death when previously convicted of a

felony involving bodily injury, applies because of her prior aggravated assault

conviction.




                                              10
              Appellate review of sentencing is de novo on the record but with a

presumption that the trial court’s determinations are correct. See T.C.A. § 40-35-

401(d). The weight to be given a sentencing factor is within the trial court’s discretion.

See T.C.A. § 40-35-210, Sentencing Commission Comments; State v. Moss, 727

S.W.2d 229, 235 (Tenn. 1986). However, an appellate court need not ignore the

existence of other enhancement or mitigating factors shown to exist in the record.

State v. Pearson, 858 S.W.2d 879, 885 (Tenn. 1993).



              First, contrary to the defendant’s claim, we believe that the circumstances

warrant a finding that the victim was treated with exceptional cruelty. Dousing the victim

with gasoline and setting her on fire, thereby leaving her with substantial burns that

required drastic treatment and ultimately resulted in death, is a particularly gruesome

method of killing. Also, although we doubt that the igniting of gasoline poured onto the

victim constitutes the use of an explosive device, compare T.C.A. § 39-17-1301(3)

(explosive weapon), we agree with the state that the defendant used the gasoline in a

manner to make it a deadly weapon. See T.C.A. § 39-11-106(a)(5)(B). Likewise, we

agree with the state that enhancement factor (11) should apply relative to her prior

aggravated assault conviction, involving her shooting the victim with a shotgun.



              On the other hand, although the state concedes that factors (10) and (16)

should not apply, we also conclude that the fact that the offense is murder precludes

application of factor (6), regarding the defendant inflicting particular great injuries upon

the victim. Needless to say, murder inherently involves the greatest of injuries.



              Thus, the defendant’s sentence is subject to enhancement under factors

(1), (5), (8), (9), (11) and (13)(B). There are no mitigating factors to consider. Under

the circumstances of the offense in this case and the defendant’s background and


                                             11
history, we conclude that the maximum sentence of twenty-five years constitutes the

least severe measure needed to achieve the purposes of sentencing provided in T.C.A.

§ 40-35-102.



               The judgment of conviction is affirmed.



                                                           PER CURIAM




                                            12
