         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE               FILED
                         APRIL SESSION, 1998             July 23, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TE NNE SSE E,         )     C.C.A. NO. 01C01-9706-CR-00229
                               )
           Appellee,           )
                               )     WILSON COUNTY
V.                             )
                               )
                               )     HON. JIMMY C. MARTIN, JUDGE
MEL ISSA J. P EWIT T,          )
                               )
           Appe llant.         )     (Especia lly Aggravated Bu rglary)



FOR THE APPELLANT:                   FOR THE APPELLEE:

B. KEITH WILLIAMS                    JOHN KNOX WALKUP
TAYLOR, TAYLOR,                      Attorney General & Reporter
LANNOM & WILLIAMS
102 East Main Street                 ELLEN H. POLLACK
Lebanon, TN 37087                    Assistant Attorney General
                                     2nd Floor, Cordell Hull Building
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     TOM P. THOMPSON
                                     District Attorn ey Ge neral
                                     111 C herry Stre et
                                     Lebanon, TN 37087




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION
       The Defendant, Melissa J. Pew itt, appe als as o f right fro m he r convic tion in

the Crimina l Court of W ilson Co unty. Follow ing a jury trial, she was convicted of

espe cially aggravated burglary. In her appeal, the Defendant presents the following

issues:


       1) Whether the evidence was sufficient to sustain a guilty verdict on the
       charge of es pecially aggravate d burglary;

       2) Whether the trial court erred in allowing the admission of
       photographs of the victim’s injuries which unfairly prejudiced and
       inflamed the jury;

       3) Whether the trial court erred in allowing the jury to consider a charge
       of an incidental crime in violation of the Defendant’s due process rights;

       4) Wh ether the trial court erred in allowing the jury to consider the
       charge of aggravated assault in add ition to th e cha rge of e spec ially
       aggravated burglary; and

       5) Wh ether the trial court erred in not allow ing the jury fo reman to
       announce the jury’s verdict as to the aggravated assault charge.

We affirm the ju dgme nt of the trial co urt.




       Elizabe th Pewitt, the victim, is married to Dwayne Pewitt and they h ave three

(3) children. In August 1995, the victim was separated from her husband and was

living in a trailer with her ch ildren. D avid P ewitt is th e victim ’s brother-in-law and was

married to the De fendan t. In October 1995, David Pewitt cam e over to perform

various repair tasks at the victim’s trailer. During this time, he was separated from

the Defendant. This contact between David Pewitt and the victim led to a rom antic

involvement during which Pewitt moved into the trailer with the victim and her




                                             -2-
children. Pewitt stayed for approximately five (5) mon ths un til the victim aske d him

to leave. P ewitt bega n living with the Defen dant ag ain at that tim e.



       On March 11, 199 6, the victim paged David Pewitt on at least two (2)

occasions. The Defendant answered that page and instructed the victim, “[Y]ou had

better leave us alone or you’ll regret everything you done [sic].” While at a friend ’s

house, the victim p aged P ewitt again around 5:00 p.m . and he returne d her c all.

W hile the victim was talking with Pewitt, she could hear the Defendant in the

background screaming at Pewitt to tell the victim wha t she [De fendan t] said. Pewitt

did not tell the victim what the Defen dant sa id, but he d id agree to meet w ith her to

talk. The victim returned home around 7:30 p.m. and began putting her children to

bed.



       The victim was lying in bed with her child when she heard P ewitt’s car tur n into

her driveway. She put on her robe and went to the door. As Pewitt walked up her

steps, she asked him if he was alone and he replied that he was. She then asked

him why he was driving as he appeared to be “pretty drun k.” Pewitt came inside and

told her that he was not alone, that the Defe ndan t and h er friend Cindy were o ut in

the car and that he was supposed to lead the victim outs ide for an a mbus h. Pewitt

stated that he could not do that to the victim a nd sh e locke d the d oor. T he victim

gave P ewitt a letter sh e had w ritten to him and the y began to hug an d kiss.



       The next thing the victim can recall is someone banging on her front door.

She unlocked it because she did not want her door to be torn down. She saw the

Defendant and Cindy outside and asked them to leave. The Defendant forced her

way inside and was screaming at Pewitt to tell the victim “[I]t’s over.” The Defendant

                                           -3-
repea tedly stated, “It’s ove r, bitch. It’s over, d o you understa nd tha t.” The victim

responded that Pewitt should tell her if it was over, and Pewitt declined to say the

relation ship w as ove r. The victim’s four (4) year old daughter was sleeping on the

couch, woke up and then began to cry. The victim took her into her bedroom and

told her to stay th ere, that ev erything w as oka y. Wh en she came back into the living

room, the Defe ndant a nd Pewitt were standing there, with Cindy standing just

outside the door. Defendant jumped onto Pewitt and hit him, causing him to fall and

break a table. The victim asked her to leave, but Defendant responded that she had

better leave Pewitt alone.      Cindy came inside slowly and stood beside the

Defen dant.



       Cindy hit the victim and then the Defendant began to hit her. Both of them

attempted to pull the victim outside by her hair but the victim sat down. Cindy said,

“Give me the knife, give me the knife, we’re going to cut this bitch’s hair.” The

Defendant agreed and handed a knife to Cindy. When they brought out the knife,

Pewitt walked outside. The victim screamed, begging the m to please leave and for

Pewitt to help her. While the victim had her hands up trying to pull her hair away

from them, they cut her hands. After the victim moved her hands, they cut her hair.

Cindy said, “We ’re going to cut your p retty little legs up .” The Defendant repeated,

“Yeah, we’re going to cut you up.” Cindy began to cut her while the Defendant beat

her.



       Defendant began cutting her legs while Cindy then beat the victim. The attack

continued while the victim screamed for help. Pewitt stepped back inside and pulled

both women off of the victim, then said, “My God, what have you all don e to her.”




                                           -4-
The victim asked him to take the women and leave. Wh en Pe witt got u p, Cind y and

the De fendan t both kicke d the victim as they w ere leavin g.



      After the victim heard their car leave, she walked over to her neighbor’s home,

the Eady’s, and asked for them to call 911. Eady got some towels for her legs after

he called 911, and they returned to her home to check on her childre n. The victim

was bleed ing so badly that she returned outside because it was cold and she was

trying to stop the bleeding. The ambulance arrived and transported her to the

Univers ity Medical Center in Lebanon. She was in surgery for five (5) hours and

stayed in the hospital for two (2) days. After she left the hospital, the victim stayed

with her mother for one (1) week. She was in a wheelchair and had to be transferred

by others from her wheelchair to the bed. The victim was unable to do anything for

herself, and her husba nd cam e and h elped h er after she returned to her trailer. He

stayed for three (3) or four (4) months. The victim displayed her scars to the jury.



      Jeff Eady, next door neighbor to the victim, was in bed asleep when he and

his wife heard s omeo ne ban ging on their front do or. Eady went to the door and saw

the victim walking down the porch and across their yard. Eady opened the door and

turned on the light and the victim came back up the stairs. Eady could see that the

victim was bleeding, so he called 911 and asked for an ambulance. The victim

advised him who attacked her and Eady relayed that information to the operator at

911. Eady noticed that she was losing a lot of blood so he got some towels. They

walked back to her trailer to check on her children, then th ey wra pped towels around

her legs. T he am bulanc e later arrived and tran sported the victim to the hosp ital.




                                          -5-
       Anthony Murray, a sergea nt with the Wilson County Sheriff’s Department, was

working on March 11, 1996, when he received a call for a domestic type situation.

He was given a description of the suspect’s car and h ow m any pe ople were in the

car.   He procee ded dow n Coles Fe rry Pike and met a vehicle matching the

description. He turned around and proceeded after the car. The car’s driver refused

to stop u ntil Mur ray pa ssed the veh icle and stopped in the middle of the road and

forced the car to stop. Cindy Mainer was driving the vehicle which belonged to the

Defenda nt. When he got to the car and the suspects exited, he saw blood on the

Defe ndan t’s hands when he put handcuffs on her. All three (3) of the suspects w ere

intoxicated, belligerent and uncooperative. The Defendant cussed at Murray and

then kicked the ba ck glas s out o f his patrol c ar with h er feet. H e did not find a k nife

in their vehic le.



       Vicky Taylor, sister to David Pewitt, had invited her brother and the Defendant

to stay in her h ome o n the eve ning prior to this attack. During that day, Taylor was

talking with the Defendant. The Defendant was angry at the victim because she had

paged Pewitt on three (3) occasions earlier that day. Defendant told Taylor that

“[she] ought to go kill Beth [the victim].” Pewitt w as in th e othe r room when this

occurred. Pewitt and the Defendant left Taylor’s home fifteen (15) or twenty (20)

minutes later and both had been drinking.



       Sergeant Jason Locke was working as a detective on the night of March 11,

1996. Locke drove to the location where the suspect’s vehicle was stopped. He

photographed the inside of the vehicle. Locke stated that all thr ee (3) su spects

appeared to have been d rinking, so he allowe d som e time to e lapse prio r to

conducting his interview s.      During that time, Locke went to the hospital and

                                             -6-
photographed the victim’s injuries. He also p hotog raphe d the s cene at the vic tim’s

residence. All these photos were exh ibited to the jury. When Locke returned to the

jail where the suspects were held, he interviewed the Defendant. The Defendant

was read he r constitution al rights an d signed a waiver o f those rights.          After

condu cting an in terview, Lo cke wro te the follow ing statem ent:

      I was at w ork at 12 o’clock no on Mo nday, M arch 11 th, 1996 when B eth
      Pewitt paged me on my beeper. She paged me two more times later
      the same day. She was wanting to talk to David, my husb and. I to ld
      her she was fixing to regret everything she had ever done to me. On
      Monday night, David, Cindy and I were riding around drinking and I
      started thinking about it and got mad, and I to ld Dav id we w ould never
      be happ y again until I wh ipped her as s. W e drov e to Be th’s traile r in
      Norene and D avid we nt in first to get her out so we could take her down
      the road an d not do it at her trailer. I walked around an d saw David
      kiss her and put his arm around her and that’s when I w ent in and
      Cindy came in behind me. I kicked Beth in her chest, side, arms and
      head. The kn ife belong ed to me. I don’t kno w where it is at now. Bo th
      Cindy and I c ut Beth ’s legs, han ds, and hair. I’m not totally sure if the
      knife we u sed wa s mine or som eone e lse’s.

After he w rote the sta temen t, the Defe ndant re ad the sta temen t and sign ed it.



      Defendant argues that the evidence is insufficient to su pport her conviction for

espe cially aggrava ted burg lary beca use the victim consented to the Defendant

entering her home and the State failed to prove the requisite intent of entry into the

victim’s habitation. A person commits the offense of especially aggravated burglary

by entering a habitation, without the effective consent of the property owner, with the

intent to comm it a felony, and the victim su ffers serious bod ily injury. Tenn. Code

Ann. §§ 39-14-4 02(a)(1) , -404(a).



      When an accused challenges the sufficiency of the convicting evidence, the

standard is whether, after reviewing the evidence in the light most favorable to the

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



                                           -7-
crime b eyond a reason able do ubt. Jackson v. V irginia, 443 U.S. 307, 319 (1979).

On appeal, the State is entitled to the strongest legitimate view of the evidence and

all inference s therefro m. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

Because a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused has the burden in this court of illustrating why the

evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. State v.

Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 19 73).



       Questions concerning the credibility of the witnesses, the weight and valu e to

be given the evidence, as well as all factual issues raised b y the evidence, a re

resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court

reweigh or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835 . A jury verdict

approved by the trial judge accredits the State’s witnesses and resolve s all conflicts

in favor of the State. Grace, 493 S.W.2d at 476.



       In the light most favorable to the State, the evidence shows that the Defendant

entered the victim’s mobile home without consent of the victim in order to cause the

victim seriou s bod ily injury. W hile the testimony from the victim makes it clear that

the front door of her home was unlocked, there is no requirem ent within th e statute

that a defendant must enter the home without consent through a “locked” door. The

victim testified that she gave no consent to the Defendant to enter, but that she

asked Defendant to leave the property. The Defendant nevertheless barged into the

victim’s home. We find there was sufficient proof from which a reasonable trier of




                                            -8-
fact could have found the elements of especially aggravated burgla ry. This issue is

without m erit.



       Defendant argues that the admission of photographs of the injuries to the

victim were prejudicial and inflamed the jury. Defendant further insists that his error

was plain error as pursuant to Rule 52(b) of the Tennessee Rules of Criminal

Procedure. These photographs showed the blood and lacerations on the legs of the

victim. Defenda nt contends that the victim’s display of the s cars on her leg were

sufficient to prove “serious bodily injury” as an element of especially aggravated

burglary, and tha t these photog raphs only serve d to inflame an d excite the jury.



       The admissibility of photographs is left to the sound discretion of the trial cou rt,

and this court w ill not interfere w ith the trial court’s exercise of that discretion absent

a showin g of clear a buse. State v. Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App.

1993) (citing State v. Banks, 564 S.W .2d 947 , 949 (T enn. 19 78)). To be admitted

into evidence, a photograph must be relevant to an issue that the jury will decide and

the probative value of the photo must outweigh any prejudicial effect that it may have

upon the trier of fact. Braden, 867 S.W.2d at 758. Simply because a photograph

vividly portrays the details of a gruesome crime or because the subject portrayed

could be described in words does not render a relevant photograph inadmissible.

Collins v. S tate, 506 S.W.2d 179, 185 (Tenn. Crim. App. 1973) (citations om itted).




       In the case sub judice, the trial court did not abus e its disc retion in admitting

the photog raphs into evidenc e.       In order to convict a defend ant of espec ially

aggravated burglary, the State must prove that the victim of the offense suffered

                                             -9-
“serious bodily injury.” Tenn. Code Ann. § 39-14-404(a)(2). Even if the visual

demonstration of her legs in addition to the photographs was cumulative, the

relevance of the photogra phs to depict the serious nature of the victim’s b odily

injuries is not diminished. While such photos may be disturbing or even gruesome

to some jurors, that alone is insufficient to render these otherwise relevant

photog raphs ina dmiss ible. Havin g found no error, th is issue is w ithout me rit.



       The Defendant argues that she should not have been prosecuted for

espe cially aggravated burglary as this act was m erely incide ntal to the commission

of another felony, aggravated assault. In addition, the Defendant asserts that the

element of “serious bodily injury” in both the offenses o f aggravated assault and

espe cially aggravated burglary cause the consideration of b oth offe nses to be in

error and a violation of her rights against double jeopardy. Similarly, the Defendant

concludes that it was “plain error” for the jury foreman to be precluded from reading

the jury’s verdict on the charge of aggravated assault after finding her guilty of

espec ially aggrava ted burg lary.



       The elements of aggravated assau lt are that a p erson c omm its the offe nse if

she intentionally or knowingly causes serious bodily injury to someone. Tenn. Code

Ann. § 39-13 -102( a)(1)(A ). In orde r to com mit the offens e of es pecia lly aggravated

burglary, a person must enter a building, not open to the public and without the

owne r’s cons ent, with the inte nt to co mm it a felon y and c ause “seriou s bod ily injury”

to anothe r person . Tenn. C ode An n. §§ 39 -14-402 (a)(1), -404(a). While the jury

was charged on both offenses upon consideration of aggra vated assa ult as a lesser

offense, the Defenda nt was convic ted of o nly one (1) offe nse o f espe cially

aggravated burgla ry. The jury wa s spe cifically instruc ted by th e trial co urt that if it

                                             -10-
found the Defend ant guilty of especially aggravated burglary, th en it was n ot to

consider any other offenses included within the charge to the jury.                 For these

reasons, the Defendant’s reliance upon State v. Anthony, 817 S.W.2d 299 (Tenn.

1991), and State v. Oller, 851 S.W.2d 841 (Tenn. Crim. App. 1992), is mis placed.

In both Anthony and Oller, the defendants were indicted and convicted of a minimum

of two (2) offenses, whereas in the case sub judice Defendant was only convicted

of one (1 ) offense .



         Defendant further relies upon the section of Tennessee Code Annotated which

states that “[a]cts which constitute an offense under this section may be prosecuted

under this section or any other applicable section, but not both.” Tenn. Code Ann.

§ 39-14 -404( d). Co urts ha ve inter preted this sta tute to m ean th at if the serious

bodily injury element used to establish the especially aggravated burglary offense

is the same injury that is an element of an accompanying offense, the defendant

may not be convicte d of both the es pecially aggravate d burglary and th e

accompanying offense. See Oller, 851 S.W.2d at 843; State v. Holland, 860 S.W.2d

53, 60 (Tenn. Crim. App. 1993). This does not apply to Defendant’s one conviction

in the case sub judice.



         Finally, the De fenda nt argu es tha t the trial c ourt er red in not allowing the jury

to anno unce the ver dict as to its de cision on the aggravated assault charge. As

aggravated assa ult was o nly to be considered by the jury if the jury did not find the

eleme nts of espe cially aggravated burglary, then there was no error by the foreman

not reading the jury’s verdict on the aggravated assault charge. This issue has no

merit.




                                              -11-
    The judgment of the trial court is affirmed.




                              ____________________________________
                              THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
L. T. LAFFERTY, Special Judge




                                      -12-
