         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 12, 2006

        STATE OF TENNESSEE v. GEORGE ROBERT WAGGONER

                       Appeal from the Circuit Court for Dekalb County
                            No. 04-117    Lillie Ann Sells, Judge



                      No. M2006-00553-CCA-R3-CD - Filed May 8, 2007



The defendant, George Robert Waggoner, was convicted by a DeKalb County jury of two counts
of premeditated murder, two counts of murder committed during the perpetration of a theft of
property valued at over one thousand dollars, and one count of theft of property valued at over one
thousand dollars, a Class D felony, involving the deaths of his grandparents. The premeditated
murder and felony murder counts merged, and the trial court imposed two consecutive life sentences
for the murder convictions concurrent with a three year sentence, as a Range I, standard offender,
for the theft conviction. The defendant now appeals, claiming the trial court erred in admitting prior
bad acts committed by the defendant, in admitting photographs of the deceased victims taken at the
crime scene, and in imposing consecutive life sentences. Following our review, we affirm the
judgments of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN , JJ., joined.

A. Vester Parsley, Jr., and Jeremy D. Trapp, Smithville, Tennessee, for appellant, George Robert
Waggoner.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William Gibson, District Attorney General; and William Locke, Assistant District Attorney General,
for appellee, State of Tennessee.
                                             OPINION

        On March 1, 2004, the bodies of Fred and Ruth Pelham were discovered after two of their
children asked a neighbor to check on them following repeated attempts to contact them by
telephone. Authorities determined that each victim had died from a single gunshot wound to the
head. The defendant, who is also the victims’ grandson, became a suspect when it was learned that
several guns were missing from the victims’ home and that the defendant had been selling guns in
exchange for money and drugs. The defendant was indicted for two counts of premeditated murder,
two counts of felony murder, and one count of theft of property valued at over one thousand dollars.

        Captain Mark Collins of the DeKalb County Sheriff’s Department testified that he
investigated both the victims’ murders and an incident that occurred on January 5, 2004, less than
two months prior to the murders, involving the burglary of their home and theft of guns. Regarding
the January 5 thefts, Captain Collins stated that after one of his deputies made the initial report and
ran the guns through the NCIC database, they discovered that the guns had been pawned at a local
pawn shop. The deputy retrieved the guns from the pawn shop and learned that they had been
pawned by the defendant. Captain Collins assisted in the arrests of the defendant and his brother,
Glen Waggoner, for the burglary and theft. After booking, the defendant advised an officer that he
wanted to speak with Captain Collins because he wanted to make a deal on the charges. The
defendant confessed to the burglary and theft and told Captain Collins that he pawned the guns to
buy drugs from his uncle, Harold Waggoner. The defendant acted as a confidential informant and
took part in an undercover drug buy from his uncle, which led to his uncle’s conviction and
incarceration for drug offenses. Captain Collins testified that one of the stolen guns, a .12 gauge
Beretta shotgun that was recovered and returned to Mr. Pelham, was found later in an outbuilding
four or five miles from the Pelham residence after having been stolen again from the murder scene
on February 29, 2004.

       Captain Collins testified that he was called to the Pelham residence on February 29, after a
neighbor found Mrs. Pelham shot in the living room. Through the investigation, Mr. Pelham’s body
was discovered underneath a tarp beside a shed outside. Captain Collins testified that an individual
named Dennis Ellis led them to the outbuilding where the stolen guns were found. In addition to the
Beretta shotgun previously mentioned, Captain Collins stated that three other guns, a .20 gauge
Beretta shotgun, a Benelli .300 caliber rifle and a Browning automatic .270 caliber rifle, were all
recovered at the shed a few miles from the Pelham residence. Additionally, authorities recovered
a Charles Daley .12 gauge shotgun that had been sold to an individual after being stolen from the
Pelham residence. Investigators recovered all of the guns within days of the murder. Captain
Collins, an avid gun collector, stated that the five recovered guns would have a value of more than
a thousand dollars.

        On cross-examination, Captain Collins recounted that the defendant was involved in the
controlled drug purchase from Harold Waggoner after the January 5 thefts. He further recalled that
Harold Waggoner was arrested within hours of the controlled buy’s occurrence. He stated that
Harold Waggoner knew the defendant had turned him in because the defendant had told him that he


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had done so. Captain Collins stated that Dennis Ellis provided the defendant with Dilaudid and
morphine in exchange for the guns; however, he was never charged with any offenses related to the
investigation.

        Brady Rochefort, the thirteen-year-old great-grandson of the victims, testified that he had
spent the night at the victims’ home on February 28, 2004. He identified the defendant and recalled
that the defendant had been to the victims’ home around 3:00 p.m. on February 29. He recounted
a discussion between the defendant and Mrs. Pelham wherein the defendant denied involvement in
any burglary of the home, and Mrs. Pelham told the defendant that she thought he was responsible.
Rochefort stated that Mr. Pelham did not speak to the defendant and that the conversation only lasted
about five minutes before the defendant left the home to return to his mother’s home next door.
Rochefort testified that his mother picked him up around 6:00 p.m. While they were leaving,
Rochefort noticed that the light in Mr. Pelham’s truck was on, so he went inside to tell him. He
stated that Mr. Pelham said he would go out later to turn it off. He reiterated that the afternoon visit
was the only time he had seen the defendant at the house and that neither victim wrote the defendant
a check during that time. Rochefort also recognized one of the recovered guns because he had been
with his grandfather just a few weeks before the murders when he purchased it at a local gun shop.

       Amber Rochefort, Brady’s mother and the victims’ granddaughter, corroborated the
testimony of her son, Brady. She also identified several of the guns recovered as belonging to her
grandfather. Jonathan Lewis, another of the victims’ grandsons, also identified all of the guns as
belonging to his grandfather.

       Ray Judge, a local gun shop owner, testified that Mr. Pelham had bought the Daley shotgun
from him on February 13, 2004, just weeks before the murders occurred. He estimated the total
value of the stolen guns to be approximately $5,500.00.

        Helen Lowery, one of the victims’ daughters, testified that the defendant and his mother lived
next door to the victims when the murders occurred. She stated that she had attempted to telephone
her parents at approximately 7:00 p.m. on February 29, because they were planning a trip to
McMinnville on Monday morning, March 1. She said that she called every thirty minutes until about
10:00 p.m. but never got an answer. She stopped calling at 10:00 p.m. because the victims usually
went to bed by that time. She thought it unusual that they did not answer the phone because they
never went out at night but thought that maybe one of her parents was not feeling well or that her
mother might have been on the internet. She said that her sister, Brenda, ended up taking her to her
appointment in McMinnville. When Brenda mentioned that she also had been unable to reach their
parents on the phone, they both became concerned. They went by their parents’ house and Lowery
noticed immediately that the victims’ truck was not parked as it usually would be. After being
unable to get either parent to answer the door, the sisters called a neighbor, Rick Amburgey, to assist
them. The neighbor was able to break into the front door and, upon entering the home, immediately
stepped back out and told Lowery to promise not to go inside while he went to call the police.
Lowery was there when the police arrived and when they found her father’s body by the shed
outside. Her mother was found dead in her recliner. Both were victims of gunshot wounds to the


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head. She recalled that the defendant had called her early on the morning of March 1 and asked her
for money. She said she never gave him any money because of the events of later that day. She was
aware he had stolen guns from the victims in January.

         Rick Amburgey testified that he lived across the street from the victims and that the
defendant and his mother lived next door to the victims. He recalled seeing the defendant walking
through the woods on the afternoon of February 29 and, later in the afternoon, he saw the defendant
and Mr. Pelham talking outside. Amburgey stated that he left his home a little after 6:00 p.m. to go
eat. He remembered hearing a gunshot from the area of the victims’ home but he figured that Mr.
Pelham was outside shooting his guns. He looked at the Pelham residence on his way to dinner and
noticed that no one was outside and that the truck was gone. He could not recall seeing any vehicles
in the victims’ driveway when he returned home from dinner on the evening of February 29. He
testified that the victims’ daughters asked him for help getting into the residence on March 1. When
he was able to open the door, Amburgey noticed the victims’ dog was covered in blood and looked
up to see Mrs. Pelham dead in her recliner. He immediately closed the door, told the daughters not
to go inside and called the police. He stated that he did not see Mr.Pelham and was concerned for
his whereabouts.

        Fred Robert Pelham, the victims’ son, testified that he received a call that his parents had
been killed and traveled to their home. He said that he immediately noticed that his parents’ truck
was parked in an unusual manner. He had no doubt that his mother had not parked it and that it had
last been driven by someone other than her.

        Glen Edge testified that he was a neighbor of William Ray Cantrell. He recalled that on the
evening of February 29, he had returned home from dinner and grocery shopping with his family to
find a dark green truck parked in his driveway. Cantrell was standing outside the driver’s door
talking to the driver. The truck pulled ahead so that Edge could park. After taking his groceries
inside, he walked back out to his car for his cigarettes and saw the defendant standing near the green
truck. He later identified the defendant out of a photographic line-up as the driver of the green truck.

        William Ray Cantrell testified that he had a drug problem in February 2004. He stated that
he knew the defendant and that they had used drugs together. He stated that, after acting as a
confidential informant against his uncle, the defendant could no longer get drugs on his own so
Cantrell would obtain them for him. He recalled that the defendant called him around 6:00 or 7:00
p.m. on February 29 and wanted to know if he “could get rid of some guns.” Cantrell contacted
Dennis Ellis and Shannon Newby about the guns. He stated that the defendant arrived at his
neighbor’s driveway at about 7:00 p.m. in a green Chevrolet truck. He said that the defendant
showed him the guns and they later drove toward Ellis’ house to show the guns to Ellis and Newby.
He described the defendant as acting normal and said he did not suspect anything. Cantrell said that
he drove the truck to Ellis’ house while the defendant stayed behind because no one would deal with
him after the confidential informant episode. Cantrell said he had a pretty good idea the guns were
stolen. He said that Newby traded four of the guns for eight Dilaudid tablets. Cantrell and the
defendant split the pills and injected them on their way home. With Cantrell’s assistance, the


                                                  -4-
defendant was able to trade the last gun to David Arendall in exchange for two morphine pills. On
March 1 at around 9:30 a.m., the defendant arrived at Cantrell’s home with an eighty dollar check
written on his grandparents’ account. They cashed the check at the VFW and purchased two
Dilaudid pills with the eighty dollars. While at Cantrell’s home, the defendant talked to someone
on the telephone and, when he hung up the phone, told Cantrell that someone had shot his
grandfather. Cantrell said the defendant really did not act upset about hearing of his grandfather’s
death.

        Shannon Newby testified that he has suffered from a long-term addiction to Dilaudid and
morphine since a car accident in 1995. At the time of trial, Newby was incarcerated for two
aggravated burglaries and related thefts. Newby identified the victims’ truck as the one driven by
Cantrell on February 29, the night he traded eight Dilaudid for four guns. He said that when the
police called him in for questioning on March 1, the guns were hidden under his bed but that his
brother, Dennis Ellis, hid them somewhere else while he was being questioned. He was not charged
with possession of the stolen guns. He did not see the defendant on the night Cantrell brought the
guns to his house and stated that he would not have dealt with the defendant because of his
reputation for turning on his uncle as well as the fact that he just did not know the defendant that
well.

         Dennis Ellis testified that he has a history of drug convictions. He related the same events
regarding the exchange of the guns for the Dilaudid pills. He stated that he wiped the four guns and
wrapped them in blankets when he took them to an abandoned house to store in an effort to save his
brother, Newby, from any trouble related to the stolen guns. He cooperated with the investigators
in retrieving the guns so he would not be charged as an accessory to murder.

        William David Arendall testified that Cantrell came to his house around 10:00 p.m. on
February 29 and asked him to keep a gun for him because his sister would not let him keep it at her
house. He denied trading drugs for the gun. He turned the gun over to the police on Tuesday, March
2. On cross-examination, he acknowledged that he had a prescription for morphine but denied ever
selling any drugs to anyone.

        Special Agent Bob Krofssik of the Tennessee Bureau of Investigation testified that he was
called to the Pelham residence in the early afternoon of March 1 where he observed Mr. Pelham’s
body near a shed and Mrs. Pelham’s body in her recliner. He observed several shotgun shells around
Mr. Pelham’s body but stated that Mrs. Pelham appeared to have suffered a single shotgun wound
to her head. He also recalled that Mrs. Pelham’s purse was on the floor near the recliner where she
lay. A videotape of the scene was shown to the jury while Agent Krofssik described the blood
spatter evidence throughout the living room. He stated that the rest of the house was in a normal
condition and that the rooms did not appear to have been ransacked, stating the house “appeared
normal other than the fact that we had two dead persons at that residence.” Keys to the truck were
found in the backyard about thirty-five to forty feet away from the house. An examination of Mr.
Pelham’s body revealed that he suffered a gunshot wound to the back of the head. The investigation
further revealed that one check was missing from the Pelhams’ checkbook.


                                                -5-
        The defendant became a suspect early in the investigation because of the January burglary
and theft, so Agent Krofssik interviewed the defendant on March 2 after the defendant was properly
advised of his rights and signed a waiver of rights. In his statement, the defendant denied any
knowledge of the murders or the theft of guns. The defendant claimed to be with Cantrell most of
the evening of February 29. He told the investigators that his grandfather had been angry with him
over the January 5 incident but had since forgiven him and was assisting him with his drug problem.

        TBI Special Agent David Hoover, who was stipulated as an expert in latent fingerprint
examination, testified that no identifiable latent fingerprints were found on the guns or the shotgun
shells. A latent print from the passenger side of the truck matched that of Cantrell. TBI Special
Agent Dan Royce, who was stipulated as an expert in ballistics, testified that all of the shells
recovered at the scene had been fired from the Charles Daley .12 gauge semi-automatic shotgun.

        Dr. Amy McMaster, Deputy Chief Medical Examiner for Davidson County, who was
stipulated as an expert in forensic pathology, testified that both victims died as a result of a single
shotgun wound to their heads. Mrs. Pelham’s wound was characterized as a close range shotgun
wound with an entry on the right side of her head that caused “a very large devastating wound that
extended across the front of her face and onto the left side of her head . . . [that] basically destroyed
the vast majority of Mrs. Pelham’s facial structures, including her eyes and her nose.” She described
Mr. Pelham’s wound as entering from the right side of the back of his neck. Although there was no
visible soot around the entry wound as in Mrs. Pelham’s wound, shotgun wadding was found in Mr.
Pelham’s brain, indicating that the wound was inflicted at a somewhat close range.

        Donald Young testified that he was working at the VFW on Monday, March 1, 2004, when
the defendant came in to cash a check. Young stated that he cashed a check for eighty dollars made
out to the defendant on Mr. Pelham’s account. He recalled that the check was dated February 29,
2004. Kelly Gasaway, a local banker, identified the signature card from the Pelhams’ checking
account. He also identified the check written to the defendant on February 29. When asked by
investigators to compare the signatures, Gasaway concluded that the signatures did not match and
that someone had forged Mr. Pelham’s signature on the check.

        Rebecca Cantrell testified that her brother, William Ray Cantrell, lived with her in February
2004. She recalled that the family had driven to Dalton, Georgia to visit a sick family member on
February 28 and had returned home sometime during the afternoon of February 29. She recalled
going out to eat dinner with her brother in the early evening but recounted that when they returned
home, he spent a lot of time at the neighbors’ house, the Edge family. She also recalled seeing a
green truck at the Edges’ home. She stated that her brother had a drug problem, and she did not want
other drug people coming to her house. Although she did not know the defendant personally, he had
been at her house a week before the murders looking for her brother. She recalled that her brother
was in and out most of the night but that he was home when she went to bed at around 10:30 p.m.




                                                  -6-
       Charles Thurman testified that he became acquainted with the defendant in December 2004
while incarcerated in the DeKalb County Jail. He stated that, one night over a game of cards, the
defendant told him that he had committed the murders but would never admit it.

        Margaret Waggoner, the defendant’s mother, was called by the defense but refused to testify.
The defense also called Joseph Lee Merriman who was the defendant’s cellmate from mid-March
2004 until January 2005. He could not recall the discussion between the defendant and Thurman
regarding the murders. He stated that no one trusted Thurman because they knew he had been
transferred from another jail for causing problems and receiving threats. He said that in the ten
months that he and the defendant shared a cell, the defendant never discussed the murders or theft
with him. Merriman conceded on cross-examination that he was not with the defendant every
minute so the statement reported by Thurman could have been made out of his presence.

                              ADMISSIBILITY OF PRIOR CRIMES

        The defendant contends that the trial court should not have admitted the January 5 burglary
and theft of guns as prior bad acts committed by the defendant. Generally, evidence of other crimes
committed by the defendant is not admissible. State v. Parton, 694 S.W.2d 299, 302-03 (Tenn.
1985). However, there are exceptions when the evidence is offered to prove a defendant’s motive,
identity, or intent, the absence of mistake, the opportunity to commit a crime, or as part of a common
scheme or plan. Bunch v. State, 605 S.W.2d 227, 229 (Tenn. 1980). Pursuant to Rule 404(b) of the
Tennessee Rules of Evidence, the trial court must satisfy the following conditions before evidence
of other crimes may be admitted:

               (b) Other Crimes, Wrongs, or Acts. – Evidence of other crimes, wrongs, or
       acts is not admissible to prove the character of a person in order to show action in
       conformity with the character trait. It may, however, be admissible for such other
       purposes. The conditions which must be satisfied before allowing such evidence are:
               (1) The court upon request must hold a hearing outside the jury’s presence;
               (2) The court must determine that a material issue exists other than conduct
       conforming with a character trait and must upon request state on the record the
       material issue, the ruling, and reasons for admitting the evidence;
               (3) The court must find proof of the other crime, wrong, or act to be clear and
       convincing; and
               (4) The court must exclude the evidence if its probative value is outweighed
       by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). When the trial court substantially complies with the requirements of Rule
404(b), we review the trial court’s determination for an abuse of discretion. State v. DuBose, 953
S.W.2d 649, 652 (Tenn. 1997).

        The record reflects that the trial court held a pretrial hearing regarding the admission of the
prior crimes relating to the January 5 incident. The state presented the testimony of Captain Collins


                                                 -7-
and Officer David Ward who testified at length regarding their investigation of the January 5
burglary and theft suffered by the Pelhams which ultimately led to the defendant’s confession for
those crimes. Captain Collins stated that the defendant blamed his drug addiction for his
involvement in the January 5 crimes; and, although he never admitted to any involvement in the
murder of his grandparents when questioned, the defendant did indicate that his drug addiction made
him do things he normally would not do. Captain Collins also testified that two of the guns stolen
in the January 5 incident and returned to the Pelhams were stolen again at the time of the murders.
The court ruled that the evidence was admissible. Specifically, the court found that the burglary and
thefts were relevant to the material issues of identity and motive. The court based its ruling on the
fact that two of the guns stolen in the January 5 incident were also stolen again during the course of
the murders, that the defendant confessed to the January 5 incident and that, during the investigation
of the murders, he denied involvement in the murders but stated that his drug problem made him do
things that he normally would not do. The court further found the proof of the other crimes to be
clear and convincing based upon the defendant’s confession to the offenses and subsequent work as
a confidential informant in a controlled drug buy from his uncle. The court also found that the
probative value of the evidence was “not substantially outweighed” by the danger of unfair prejudice
posed by its admission.1

       We find that the trial court substantially complied with the requirements of Rule 404(b).
Clearly, the evidence is highly relevant to the identity of the perpetrator as well as a motive for the
offenses. Proof of the January 5 incident is also clear and convincing given the defendant’s
confession to the offenses. Furthermore, as noted by the trial court, the proof in this case is largely
circumstantial and the probative value of the evidence as relevant to the perpetrator’s identity and
motive is not outweighed by the danger of unfair prejudice. Therefore, we conclude that the trial
court did not abuse its discretion in admitting the evidence of the defendant’s prior crimes of
burglary and theft.

                                   ADMISSIBILITY OF PHOTOGRAPHS

        The defendant contends that the trial court should not have admitted three photographs taken
of the victims at the crime scene because they were particularly inflammatory.2 On appeal, the state
contends that the trial court did not abuse its discretion in admitting the photographs “because the
photographs at issue were clearly relevant . . . to assist the trier of fact” regarding the location of Mrs.


         1
            The trial court utilized the weighing process of Tennessee Rules Evidence 403 which excludes otherwise
relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice,” rather than the
more stringent standard of Tennessee Rules of Evidence 404(b) that requires exclusion if the “probative value [of the
evidence] is outweighed by the danger of unfair prejudice.” The state appears to have the same confusion in its brief
to the court.

         2
             The three challenged photographs were admitted at trial as Exhibits 21, 22 and 29. However, the exhibits
had been previously numbered as Exhibits 31, 32 and 41, respectively, for the purposes of any pretrial or jury-out
hearings. In the course of pretrial hearings, some exhibits were either withdrawn or ruled inadmissible. Therefore, we
will refer to the exhibits as they were numbered when admitted into evidence for the jury’s consideration.

                                                          -8-
Pelham’s body in relation to her purse and the manner in which Mr. Pelham’s wound was inflicted.
Two of the disputed photographs show Mrs. Pelham as she was found at the crime scene, sitting in
her recliner in the living room. The third photograph shows the wound to the back of Mr. Pelham’s
head as he lay on the ground at the crime scene. During the jury-out hearing regarding the
admissibility of the photographs, the state sought admission of the photographs as accurate
depictions of the crime scene and as relevant to describe the injuries suffered by the victims. The
trial court found that the photographs were admissible, stating:

       The court does not find that these are tremendously inflammatory, they would be
       admissible into evidence in this case and that they are necessary for the reasons stated
       on the record for the state to prove its case or help to prove its case.

The announcement of the trial court does little to illuminate the basis of relevance of the photographs
or to explain the balancing process that led to the trial court’s ruling.

        As a general rule, all relevant evidence is admissible. Tenn. R. Evid. 402. However, even
relevant evidence “may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury. . . .” Tenn. R. Evid. 403
(emphasis added). Photographs of a deceased victim may be admissible “if they are relevant to the
issues on trial, notwithstanding their gruesome and horrifying character.” State v. Banks, 564
S.W.2d 947, 951 (Tenn. 1978). However, if they are not relevant, they may not be admitted to
inflame a jury and unfairly prejudice the jury against a defendant. Id. The term “unfair prejudice”
has been defined as “[a]n undue tendency to suggest a decision on an improper basis, commonly,
though not necessarily, an emotional one.” Id. As with any other form of evidence, the decision to
admit photographs of a deceased victim lies within the discretion of the trial court, and we will not
overturn that decision absent a clear showing of an abuse of discretion. State v. Vann, 976 S.W.2d
93, 103 (Tenn. 1998). The modern trend is to vest more discretion in the trial court’s rulings
regarding admissibility. Banks, 564 S.W.2d at 949.

        The first photograph of Mrs. Pelham, Trial Exhibit 21, shows a side view of her body as she
lay in her recliner. The picture is relevant to show the location of the victim and the condition of the
crime scene. The photograph shows no signs of a struggle, making it more likely that the victim was
killed by someone known to her. The picture is not particularly graphic and shows just a small
amount of blood from the wound to the victim’s face. We conclude that the probative value of the
evidence was not substantially outweighed by the danger of unfair prejudice and that the trial court
did not abuse its discretion in admitting Exhibit 21 pursuant to Rule 403 of the Tennessee Rules of
Evidence.

        The second photograph of Mrs. Pelham, Trial Exhibit 22, shows a front view of the victim
as she was discovered at the scene. The admission of this photograph requires more analysis and
explanation. The color photograph is graphic and shows that the victim’s face was basically
obliterated by the wound. The victim’s chest is covered with blood and brain matter. It also shows
that the victim remained in her recliner while the shooter entered the room. As noted by our case


                                                  -9-
law for years, “[t]he more gruesome the photographs, the more difficult it is to establish that their
probative value and relevance outweigh their prejudicial effect.” Id. at 951. Indeed, the record
reflects that one juror had to be excused from service on the second day of trial due, at least in part,
to viewing this photograph on the previous day. Thus, the danger of unfair prejudice is apparent
from the record of this case. The question remains whether such danger substantially outweighed
the probative value of the photograph.

       During the jury-out hearing, the state argued that the photograph was relevant, in part,
because it also showed the victim’s opened purse nearby from which the defendant obtained the
check he later cashed at the VFW. However, the next photograph admitted at trial, Trial Exhibit 23,
shows a close-up of the purse, with a portion of the victim’s leg and recliner included in the
photograph, clearly demonstrating the proximity of the victim to her purse. Thus, the value of
Exhibit 22 to illustrate the location of the victim’s purse adds little weight in favor of admissibility.

         Crime scene photographs are valuable to illustrate the injuries to a victim, as well as the
mechanism and manner of infliction of the injuries. See, e.g., State v. Leach 148 S.W.3d 42, 63
(Tenn. 2006). However, when the facts and circumstances regarding a cause of death are clearly
explained by expert testimony, it becomes more difficult to establish that the probative value of the
particularly graphic photograph is not substantially outweighed by the danger of unfair prejudice.
Banks, at 951-52. In this regard, we note that the state made the general assertion at the jury-out
hearing that Exhibit 22 was relevant to show the condition and layout of the crime scene relative to
the manner of infliction of the injuries on Mrs. Pelham. In addition to Exhibit 22, the state also
introduced a crime scene video portraying the condition of the residence, that it had not been
ransacked and the layout of the room in which Mrs. Pelham was discovered. However, the video
does not contain any footage of the victim’s body as found at the crime scene. In this regard, the
photograph of Mrs. Pelham’s body as she was found in her recliner was particularly probative of the
location of furniture in the living room and a doorway from the kitchen as it related to location of
her body. During the cross-examination of Dr. McMaster, the defendant utilized a crime scene
diagram when questioning her regarding a possible location of the shooter. On numerous times
during cross-examination, Dr. McMaster declined to offer an opinion regarding the location of the
shooter, other than to reiterate that the wound was inflicted at close range from the right side of the
victim’s forehead. However, on redirect the state showed Dr. McMaster Exhibit 22, and she agreed
that it was possible that the shooter could have walked behind through the kitchen doorway and
reached from behind the chair to inflict the fatal shot.

         Therefore, we conclude that the photograph was extremely probative to show the manner of
infliction of the victim’s injuries and to accurately depict the crime scene. The identity of the shooter
was the main issue at trial. The nature of the victim’s injuries and the manner in which they were
inflicted both suggest that the victim was killed by someone known to her. Therefore, we conclude
that the probative value of the photograph was not substantially outweighed by the danger of unfair
prejudice and that the trial court did not abuse its discretion in admitting this photograph.




                                                  -10-
        The third photograph, Trial Exhibit 29, shows the entry wound injury to the back of Mr.
Pelham’s head. Based upon the state’s assertions, the trial court admitted the photograph as
probative of the manner and cause of death. We agree that the photograph was relevant to depict the
manner of death and that it was not particularly gruesome. Therefore, we conclude that the trial
court did not abuse its discretion in admitting this photograph.

                                  CONSECUTIVE SENTENCING

          In his last allegation of error, the defendant contends that the trial court erred in imposing
consecutive life sentences for the two first degree murder convictions. He claims that the record
does not support the trial court’s finding that he is “a dangerous offender whose behavior indicates
little or no regard for human life, and no hesitation in committing a crime in which the risk to human
life is high.” Tenn. Code Ann. § 40-35-115(b)(4). The state responds that the record fully supports
the trial court’s determination that the defendant is a dangerous offender and that he committed the
crimes while on probation. Tenn. Code Ann. § 40-35-115(b)(4) and (6).

        Appellate review of the length, range, or manner of service of a sentence is de novo. Tenn.
Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature
and characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on enhancement and mitigating factors; (6) any statement by the appellant in his own behalf;
and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;
see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn.1991). The burden is on the appellant to show
the impropriety of his sentences. See Tenn. Code Ann. § 40-35-401, Sentencing Commission
Comments. Moreover, if the record reveals that the trial court adequately considered sentencing
principles and all relevant facts and circumstances, this court will accord the trial court’s
determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

         Tennessee Code Annotated section 40-35-115(b)(4) provides that a trial court may impose
consecutive sentences if a defendant is convicted of more than one offense and the trial court finds
by a preponderance of the evidence that “[t]he defendant is a dangerous offender whose behavior
indicates little or no regard for human life, and no hesitation about committing a crime in which the
risk to human life is high.” In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn.1995), our supreme
court held that satisfying section 40-35-115(b)(4), by itself, is not sufficient to sustain consecutive
sentences. If the defendant is found to be a dangerous offender under the statute, the trial court must
also determine whether the sentences imposed are reasonably related to the severity of the offenses
and necessary to protect the public from further criminal activity by the defendant. Id. Additionally,
trial courts must make specific findings regarding these factors before imposing consecutive
sentences. State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

      The additional evidence considered at the sentencing hearing consisted of the testimony of
Donna Dunlap, a Warren County probation officer who prepared the defendant’s presentence report.


                                                 -11-
She testified that the defendant had been charged with escape while awaiting trial on the present
offenses. She also indicated that the defendant was on probation for simple possession and pled
guilty to a violation of probation while awaiting trial on the present offenses. Aside from these
convictions, the defendant’s criminal history consisted of various traffic offenses, a driving under
the influence conviction and a worthless check charge that was still pending at the time of
sentencing. Dunlap stated that the defendant told her he had a drug problem stemming from dental
work performed in 1999. She also testified that the defendant declined to make a statement
regarding the present offenses for which he stands convicted.

        The state urged the court to impose consecutive sentences based upon the “dangerous
offender” and “committed while on probation” factors of Tennessee Code Annotated section 40-35-
115(b)(4) and (6). Additionally, while not presenting any testimony from the victim’s family, the
state indicated that “[t]he family has expressed a certain amount of concern as to [the defendant’s]
lack of remorse.” The defendant argued that he did not qualify for consecutive sentencing because
“his record of criminal activity is not extensive” without specifically addressing the dangerous
offender or probation factors. The trial court concluded that consecutive sentences were appropriate
based upon its finding by a preponderance of the evidence that the defendant is a dangerous offender
and that he committed the present offenses while on probation. The trial court also found that the
length of the sentence was reasonably related to the severity of the offenses.

        We conclude that the evidence does not preponderate against these findings and that the
record supports the imposition of consecutive life sentences for the first degree murder convictions.

                                         CONCLUSION

        In accordance with the foregoing, we conclude that the trial court did not err in admitting
prior crimes of the defendant and did not abuse its discretion in admitting photographs of the
deceased victims taken at the crime scene. We also conclude that the record supports the trial
court’s imposition of consecutive sentences for the first degree murder convictions. Therefore,
the judgments of the trial court are affirmed.

                                                       ___________________________________
                                                       D. KELLY THOMAS, JR., JUDGE




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