         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   February 3, 2004 Session

       STATE OF TENNESSEE v. RAYMOND DOUGLAS MYERS, SR.

                  Direct Appeal from the Circuit Court for Putnam County
                           No. 01-0401A    John Turnbull, Judge



                     No. M2003-01099-CCA-R3-CD - Filed April 29, 2004


The Defendant, Raymond Douglas Myers, Sr., was found guilty by a jury of three counts of first
degree murder, two counts of felony murder, one count of aggravated arson, and one count of
conspiracy to commit murder. The trial court merged the convictions for felony murder and
conspiracy to commit murder into the three first degree murder convictions. After a sentencing
hearing, the trial court imposed consecutive sentences of life without the possibility of parole for
each murder conviction, and a consecutive twenty-four year sentence for the aggravated arson
conviction. In this direct appeal, the Defendant argues that the evidence is insufficient to support
his convictions, that Tennessee’s first degree murder sentencing statute is unconstitutional, and that
the trial judge improperly instructed the jury regarding the State’s burden of proof. We affirm the
judgments of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

John Appman, Jamestown, Tennessee, for the appellant, Raymond Douglas Myers, Sr.

Paul G. Summers, Attorney General and Reporter; Elizabeth Marney, Assistant Attorney General;
Clement Dale Potter, District Attorney General; and Larry G. Bryant, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        A brief overview will be helpful to understanding this case. On July 30, 1999, the
McMinnville Fire Department responded to a house fire. Inside the house, firefighters discovered
the bodies of Dianne Watts, her daughter Jessica Watts, and Chelsea Smith, Jessica Watt’s friend
who spent the night with her on July 29. Dianne Watts, her daughter Jessica, and Dianne Watt’s
boyfriend, the Defendant, lived together in the house that burned. The Defendant had lived there
about six years. Investigators with the fire department determined that the fire was deliberately set
with an “ignitable liquid fuel” based upon burn patterns and the presence of an accelerant in the
bedrooms, in the hallway, on the bed, and on the clothes of Chelsea Smith and Jessica Watts.
Firemen also recovered a metal baseball bat from the hallway and a torque wrench from the area
immediately at the front door of the house.

        Dr. Bruce Levy, who performed the autopsies on the victims’ bodies, testified that he
identified five injuries to Chelsea Smith’s head and one to her groin. She died as a result of the
blunt-force injuries and smoke inhalation. Dr. Levy testified that the injuries to Ms. Smith were
consistent with full-swing blows from the torque wrench. The evidence of smoke inhalation
indicates that Ms. Smith was alive when the fire was set.

       Dr. Levy also testified that he found two injuries on Jessica Watts’ head that he believed to
have been caused by blows from the torque wrench. The immediate cause for Ms. Watts’ death was
smoke inhalation.

       With respect to Dianne Watts, Dr. Levy found two severe injuries to her head that he believed
were caused by the baseball bat. Raymond DePriest, a forensic scientist with the Tennessee Bureau
of Investigation, testified that a DNA analysis of blood from the baseball bat showed the blood to
belong to Dianne Watts.

        Four persons were indicted for the murders, arson, and conspiracy to commit the murder of
Diane Watts: the Defendant, the Defendant’s friend Johnny Lee Lewis, the Defendant’s mother
Clementine Myers, and the Defendant’s brother Gary Myers. The State’s theory was that the four
of them conspired to kill Dianne Watts because she had information regarding criminal activity in
which they engaged. Gary Myers’ house had been burglarized, and he and Clementine Myers
believed that Ms. Watts was responsible. Gary Myers had been investigated for bankruptcy fraud
and food stamp fraud, and the conspirators thought Ms. Watts had information related to the
investigation for fraud.

        The State offered the testimony of the Defendant's estranged wife, who heard him and Johnny
Lewis talking about how Ms. Watts was “running her mouth,” and that Clementine Myers wanted
Ms. Watts “shut up.” The day before the murder, Mr. Lewis bought approximately five two-gallon
jugs of gasoline. Shortly after the murders, the Defendant gave Mr. Lewis nine hundred dollars that
came from Clementine Myers. On the morning following the murders, Gary Myers called the
Defendant at approximately 6:20 a.m. and tape recorded a brief portion of their conversation, which
the State characterized as an attempt to create an alibi for the Defendant.

        Throughout the trial, the prosecution offered the testimony of witnesses who had heard the
Defendant, Johnny Lewis, and Clementine Myers make incriminating statements and threats
regarding Ms. Watts. Several witnesses testified to details of the burglary of Gary Myers’ house and
the exchange of a stolen tractor for methamphetamine by the Defendant and Mr. Lewis. These facts
were relevant to the conspiracy charge, but have little, if any, bearing on the resolution of the issues
raised by the Defendant in this appeal.


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        The first issue raised by the Defendant is whether the evidence is legally sufficient to support
his convictions of the murders of Dianne Watts, Jessica Watts, and Chelsea Smith and his conviction
for aggravated arson. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of
guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.” A
convicted criminal defendant who challenges the sufficiency of the evidence on appeal bears the
burden of demonstrating why the evidence is insufficient to support the verdict, because a verdict
of guilt destroys the presumption of innocence and imposes a presumption of guilt. See State v.
Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000);
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court must reject a convicted criminal
defendant’s challenge to the sufficiency of the evidence if, after considering the evidence in a light
most favorable to the prosecution, we determine that any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

         On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at
558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of 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, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d
at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from
circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

       Our criminal code defines first degree murder as “[a] premeditated and intentional killing of
another.” Tenn. Code Ann. § 39-13-202(a)(1). Given the testimony concerning the injuries to the
victims and the cause of the fire, the evidence clearly supports a finding that the killings were
premeditated and intentional. Aggravated arson is the knowing damage of a structure by fire for an
unlawful purpose where there is a person present in the structure. See Tenn. Code Ann. § 39-14-
301(a)(2), -302(a)(1). The evidence reflects that the fire was intentionally set with the use of
accelerants. Dr. Levy testified that two of the victims were alive at the time the fire was set.
Therefore, the proof is sufficient to support a finding that aggravated arson was committed. The
question that remains is whether the evidence demonstrated beyond a reasonable doubt that the
Defendant committed the offense.

         To connect the Defendant to the murders and the arson, the State first called Brandy Hodges,
who lived near the house in which the victims died, which was rented by Dianne Watts. Ms. Hodges
testified that she got home at approximately 6:00 on the evening of July 29. At around 11:00 that
night, she saw Dianne Watts’ vehicle drive into the driveway. Thereafter at about 1:00 a.m., she
heard the Defendant’s truck drive into the driveway of Ms. Watts’ house. She said that she knew
it was the Defendant’s truck because it had “an extremely loud engine exhaust” on it, and she “had


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become pretty used to hearing it.” Also, she never heard her dog bark, and her dog always barked
when unfamiliar people were near. On cross-examination, she admitted that she did not see the
Defendant’s truck or the Defendant that night. She also admitted that she had heard other loud
trucks that sounded similar to the Defendant’s.

        Shawn McCormick testified that he helped the Defendant work on a vehicle about two weeks
prior to the murders. They were using Mr. McCormick’s tools, including a cracked torque wrench.
Mr. McCormick left the torque wrench in the basement of the house where the Defendant lived with
Ms. Watts. Mr. McCormick returned some time prior to the murders to retrieve his tool box, but he
discovered that his torque wrench was missing. Several people, including Ms. Watts’ daughter, her
brother, her nephew, and her sister, testified that they had been in her house shortly before the
murders, but had not seen a torque wrench.

        The State also offered the testimony of several witnesses who had heard the Defendant
threaten to harm Ms. Watts. Minnie McReynolds testified that the Defendant had been at her house
putting up molding a week or two before the murders. She said that Ms. Watts arrived and asked
the Defendant when he would be home, and the Defendant stated that he was not going to go home
with her. Ms. McReynolds testified that after Ms. Watts left, she heard the Defendant say, "One of
these days I’m going to kill that bitch.” When Ms. Reynolds asked him why he was so upset, he told
her about a court date he had coming up.

        Shonda Myers, the Defendant’s daughter, testified that the Defendant treated Ms. Watts “like
a dog.” She also said that she had heard the Defendant threaten to kill Ms. Watts, but she did not
believe that he meant it. She told investigators that, about two weeks before the murders, she heard
the Defendant say that “if people kept on messing with him, he’d burn them out.”

         Diana Ross, who cut the hair of both the Defendant and Ms. Watts, testified that three or four
weeks before the murders, the Defendant told her that “he was going to burn her house down with
her in it.” Ms. Ross said that the Defendant was upset because his son Raymond was living with Ms.
Watts at the time.

        The Defendant’s estranged wife, Shirley Humphrey, testified that she heard the Defendant
and Mr. Lewis talking about how Ms. Watts was “running her mouth,” “pissing a lot of people off,”
and needed to be “shut up.” On one occasion, she was present while Mr. Lewis was on the phone,
and he told her he was talking to the Defendant. She heard Mr. Lewis tell the Defendant to “make
sure the little girl isn’t there.”

        Dan Ogle, an agent with the Tennessee Bureau of Investigation, interviewed the Defendant
as part of his investigation of the murders. He testified that he met the Defendant outside the police
station. He noticed that, while still in the parking lot, the Defendant removed his belt and placed it
inside his truck. This truck was later searched by a police dog trained to pick up the scent of
accelerants. The dog focused intently on the belt that it found in the Defendant’s truck. Later testing
in a laboratory did not indicate the presence of an accelerant on the Defendant’s belt. However,


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Randall Nelson, the TBI laboratory technician, testified that it was possible that the belt contained
such a low level of the accelerant that his instruments failed to pick it up, or it may have evaporated.

        More importantly, Agent Ogle testified that he asked the Defendant whether he had any tools
at the house where he lived with Ms. Watts. The Defendant replied:

        Shawn McCormick brought tools to the house and fixed the rear-end of my four-
        wheel-drive. Shawn McCormick left a torque wrench at my house approximately
        one or two months before this fire. Dianne brought this wrench from the basement
        to the livingroom and put it next to the front door by the curtain vent. If you entered
        the front door, this tool would be on your right. The color of the tool was silver.
        Shawn used the wrench, but I never did use it.

Agent Ogle testified that he did not mention the torque wrench to the Defendant, and no one outside
of law enforcement knew its significance as one of the murder weapons. He further stated that the
Defendant described the exact location where the investigators found the torque wrench. However,
according to his statement, the Defendant had not been in Ms. Watts’ house since the Wednesday
before the murders, July 28, 1999. In his statement, the Defendant also denied ever threatening to
kill Ms. Watts or “burn her out.” Agent Ogle interviewed the Defendant on the day the bodies were
discovered. He said the Defendant showed no emotion regarding the deaths of Ms. Watts and her
daughter, Jessica.

       The Defendant presented two alibi witnesses, Teresa Myers (his ex-wife), and her mother,
Clara Whipple. They both testified that the Defendant stayed at their house in Winchester on July
29, 1999. Ms. Whipple testified that she awoke the Defendant at 6:00 or 6:30 on the morning of July
30.

         Viewing the totality of this evidence in the light most favorable to the State, we conclude that
the evidence is legally sufficient to support the findings of guilt beyond a reasonable doubt. Shortly
before the murders, the Defendant threatened to harm Ms. Watts, even saying “he was going to burn
her house down with her in it.” Shirley Humphrey heard Johnny Lewis tell the Defendant to “make
sure the little girl isn’t there.” At around 1:00 on the morning of the murders, Brandy Hodges heard
the Defendant’s truck enter the driveway of Ms. Watts’ house. She said that she recognized the
Defendant’s truck because it had “an extremely loud engine exhaust” on it, and she “had become
pretty used to hearing it.” Finally, Agent Ogle testified that, when he asked the Defendant about
tools, the Defendant mentioned the torque wrench and described exactly where investigators located
it at the crime scene. However, several witnesses, including Ms. Watts’ daughter, who had been in
the house the day before the murders, testified that there was no torque wrench in the living room
at that time. Although the Defendant offered two witnesses who testified that he was in Winchester




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at the time of the murders, the jury obviously discredited the testimony of these witnesses and found
the Defendant guilty. While not overwhelming, the proof is sufficient to support the convictions.1

         In his second issue, the Defendant argues that the indictment was insufficient because it did
not set forth the aggravating factors relied upon by the State to warrant a sentence of life without the
possibility of parole. In support of his argument, he cites Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000), in which the Supreme Court held, “Other than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. In Ring
v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), the Supreme Court extended
its holding in Apprendi to capital cases. The court specifically held that the jury, not the trial judge,
was required to find the aggravating circumstances necessary to impose the death penalty. See id.
at 609.

        However, our supreme court has held that “the principles of Apprendi do not apply to
Tennessee’s capital sentencing procedure.” State v. Dellinger, 79 S.W.3d 458, 467 (Tenn. 2002).
“Neither the United States Constitution nor the Tennessee Constitution requires that the State charge
in the indictment the aggravating factors to be relied upon by the State during sentencing in a first
degree murder prosecution.” Id. In accordance with our supreme court’s holding in Dellinger, we
hold that the principles of Apprendi do not apply to Tennessee’s capital sentencing procedure.


      Moreover, in the recent case State v. Daryl Keith Holton, No. M2000-00766-SC-DDT-DD,
2004 Tenn. LEXIS 1 (Tenn., Nashville, Jan. 5, 2004), our supreme court stated
                 After the release of our opinion in Dellinger, the United States Supreme Court
         issued its opinion in Ring. The narrow question presented in Ring was “whether [an]
         aggravating factor may be found by the judge, as Arizona law specifies, or whether
         the Sixth Amendment’s jury trial guarantee, made applicable to the States by the
         Fourteenth Amendment, requires that the aggravating factor determination be
         entrusted to the jury.” 536 U.S. at 597. The Court in Ring pointed out the limited
         nature of the issue, noting that of the thirty-eight states with capital punishment,
         twenty-nine, including Tennessee, “commit sentencing decisions to juries.” Id. at
         606 n.6. The Court also emphasized that Ring did not contend that his indictment
         was constitutionally defective and noted that the Fourteenth Amendment has not been
         construed to apply to the states the Fifth Amendment right to “presentment or
         indictment of a Grand Jury.” Id. at 597 n.4 (quoting Apprendi, 530 U.S. at 477 n.3).
         The narrow holding of the Court in Ring is because Arizona’s enumerated
         aggravating factors operate as “the functional equivalent of an element of a greater


         1
          The Defendant also argues that the evidence is insufficient to support his conviction of conspiracy to commit
murder. However, the trial court, without objection from the State, merged that conviction into the conviction for the
murder of Dianne W atts. Therefore it is unnecessary for us to address the sufficiency of the evidence with respect to the
conspiracy conviction.

                                                           -6-
       offense,”the Sixth Amendment requires that they be found by a jury. Id. at 609.
       Contrary to the defendant’s assertions, Ring does not stand for the broad proposition
       that aggravating circumstances must be charged in the indictment to satisfy
       constitutional standards. . . . . Therefore, Ring provides no relief to the defendant and
       does not invalidate this Court’s holding in Dellinger.

Daryl Keith Holton, 2004 Tenn. LEXIS 1, at *43. Therefore, we conclude that the Defendant’s
argument that the indictment was defective on the basis that the aggravating factors were not charged
therein is without merit.

        The final issue raised by the Defendant is whether the trial court improperly charged the jury
as to the State’s burden of proof. Specifically, the trial court instructed the jury:

                When the evidence is made up entirely of circumstantial evidence, then
       before you would be justified in finding the defendant guilty, you must find that all
       the essential facts are consistent with the hypothesis of guilt, as that is to be
       compared with all the facts proved; the facts must exclude every other reasonable
       theory or hypothesis except that of guilt; and the facts must establish such a certainty
       of guilt of the defendant as to convince the mind beyond a reasonable doubt that the
       defendant is the one who committed the offense. It is not necessary that each
       particular fact should be proved beyond a reasonable doubt if enough facts are proved
       to satisfy the jury beyond a reasonable doubt of all the facts necessary to constitute
       the crime charged. Before a verdict of guilty is justified, the circumstances, taken
       together, must be of a conclusive nature and tendency, leading on the whole to a
       satisfactory conclusion and producing in effect a moral certainty that the defendant,
       and no one else, committed the offense.

(Emphasis added). The Defendant argues that the underlined portion of the charge effectively
relieved the jury of its responsibility to examine the proof as to each element of the charged offenses.
We disagree. In State v. Bane, 853 S.W.2d 483, 487-88 (Tenn. 1993), our supreme court upheld an
identical instruction as a correct statement of the law. The Defendant relies again upon Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Ring v. Arizona, 536
U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). These two cases interpret the United States
Constitution to require that each fact or element that is a condition to the imposition of a sentence
above the statutory maximum must be decided by a jury beyond a reasonable doubt. These cases do
not mandate that each and every discrete fact indicating guilt in a criminal prosecution be proven
beyond a reasonable doubt. All that is necessary is that the elements of the charged offense be
proven beyond a reasonable doubt. Therefore, the trial court’s instruction in this regard was proper,
and this issue is without merit.

       The judgment of the trial court is affirmed.




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      ___________________________________
      DAVID H. WELLES, JUDGE




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