            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                          AUGUST 1998 SESSION
                                                      October 19, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 01C01-9708-CC-00352
            Appellee,            )
                                 )    PERRY COUNTY
VS.                              )
                                 )    HON. CORNELIA A. CLARK,
MARK C. WEATHERLY,               )    JUDGE
                                 )
            Appellant.           )    (First-Degree Murder; Theft)



FOR THE APPELLANT:                    FOR THE APPELLEE:


JOHN H. HENDERSON                     JOHN KNOX WALKUP
Public Defender                       Attorney General & Reporter
       -and-
VANESSA P. BRYAN                      LISA A. NAYLOR
Asst. Public Defender                 Asst. Attorney General
P.O. Box 68                           John Sevier Bldg.
Franklin, TN 37065-0068               425 Fifth Ave., North
                                      Nashville, TN 37243-0493

                                      JOE D. BAUGH
                                      District Attorney General

                                      DONALD W. SCHWENDIMANN
                                      Asst. District Attorney General
                                      481 East Main St.
                                      Hohenwald, TN 38462




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              Following a jury trial, the defendant was convicted of first-degree murder

and theft of property worth five hundred dollars ($500) or less. The trial court sentenced

the defendant to life in prison on the murder charge and eleven months and twenty-nine

days in county jail for the theft conviction, to run consecutively to the life sentence. The

defendant now appeals, arguing that the trial court erred in denying his request for a

special jury instruction on circumstantial evidence; that the evidence is insufficient to

support convictions for first-degree murder and theft; and that the trial court erred in

ordering his sentences to run consecutively. We affirm the defendant’s convictions and

sentence.



              Lynda Cotham Dutton, who was once married to the defendant’s now

deceased brother, saw the defendant for the first time in six years in a local bar on June

3, 1996. The defendant introduced Lynda to a woman named Mary Margaret Lodge Lee,

a woman he said he had “been with” for a few years. At the time, the defendant and

Mary were renting a room at a local motel, but neither was employed. Lynda invited the

defendant and Mary to live with her. The defendant and Mary moved into Lynda’s house

that weekend.



              Lynda, the defendant, and Mary would regularly socialize together by

frequenting a nearby bar called Cub’s Den every afternoon. Towards the end of June,

a romantic relationship developed between Lynda and the defendant; they were planning

to be married on July 21. Lynda and the defendant moved out of the house and in with

a friend, Alan Duncan, leaving Mary alone in the house the three had been renting. One

evening, while Lynda and the defendant were at Cub’s Den, the defendant told a waitress



                                             2
that “they were going to get rid of” Mary.



                 Even though Mary no longer joined Lynda and the defendant in their daily

visits to Cub’s Den, the defendant continued to see Mary on occasion after he and Lynda

moved out. On July 3, he borrowed a car from Lynda to drive Mary to pick up her social

security check. Later that evening, the defendant and Lynda visited Cub’s Den. With a

stack of twenty dollar bills, the defendant paid their bar tab and bought “everybody beer.”



                 During the next few days, Mary prepared to move out of the house she had

been renting. She told her neighbor, Lisa, that she and the defendant were moving

during the weekend of July 7 to a house they had previously viewed, and she solicited the

help of Lisa and her son in loading her things in a truck. In the early afternoon of July 7,

Lisa took a telephone call for Mary. The caller told Lisa, “This is Mark. Can you tell Mary

I’ll be late?”



                 Later that afternoon, the defendant and Lynda went to a bridge at Lick

Creek to go fishing. This location was a ten to twenty minute drive from Alan Duncan’s

house, where the defendant and Lynda were living at the time. Later that afternoon,

Lynda and the defendant returned home. That evening, Lynda called in an order for

some fish from a local restaurant. On her way to the restaurant to pick up the fish, she

dropped the defendant off at Mary’s house, where she noticed a truck backed into the

driveway with its bed covered with a green tarp. Mary’s neighbor watched as Mary met

with the defendant. That was the last Mary’s neighbor saw of Mary.



                 A woman who lives near the bridge at Lick Creek heard a gun shot around

9:00 to 9:30 p.m. Her husband convinced her someone was hunting, so the noise was



                                             3
not investigated.



             The defendant returned home around 10:20 p.m. driving the truck that had

been at Mary’s house earlier that day. The truck was still packed with Mary’s personal

belongings and covered with green tarp. Lynda asked the defendant if he had taken

Mary to the interstate so that she could hitchhike to California. The defendant responded

affirmatively and stated that he had watched Mary get into a car with two men.



             Mary’s body was found the next day, July 8, near the bridge at Lick Creek.

She had a gunshot wound, caused by a large caliber bullet such as a .357 caliber gun,

to the back of her head and an exit wound between her eyebrows. The nature of the

wound indicated that the muzzle of the gun had been greater than twenty-four inches

from the victim’s head when the bullet was fired. The nature of the wound also indicated

that the bullet would have caused immediate unconsciousness and death. Later that day,

the defendant unloaded the back of the Ford truck he had driven home the previous

night. The truck was filled with boxes and bags of Mary’s clothing and other belongings.

The defendant and Lynda also went to Cub’s Den, where the defendant paid their bar

tab.



             That evening, Lynda spoke with the authorities, telling them that she and

the defendant had been to the bridge at Lick Creek the previous day. Police authorities

also questioned the defendant. The defendant was asked whether he could identify the

victim from photographs taken at the crime scene, and the defendant replied that he did

not know the victim. When questioned by an agent of the Tennessee Bureau of

Investigation, however, the defendant admitted that he had met the victim in California

and had known her for three years. He also claimed that on July 7, he did not leave



                                           4
home the entire evening.



              Lynda and Alan Duncan checked Alan’s gun collection, which was kept in

an unlocked gun cabinet in Alan’s house. They discovered that one of the guns, a .357

caliber Magnum pistol that had been fully loaded a month or two prior, had an empty shell

casing. Lynda threw the cartridge away, but at Alan’s request, later retrieved it from the

garbage can and set it on the dresser. The cartridge was later found by police in the

garbage can, where police authorities also found a keyring with the name “Mary” on it,

latex gloves, and two love letters from the defendant to Mary. The letters referred to Mary

as the defendant’s “precious wife” and were signed as “husband Mark.” No fingerprints

or DNA evidence were found at the scene of the crime or on any of the items recovered,

including Alan’s .357 caliber Magnum pistol. The bullet was also not recovered.



              On July 10, a waitress at Cub’s Den read an article in the local newspaper

about the murder.     The article described the victim.        The waitress anonymously

telephoned the police department and told the authorities that she thought the victim was

Mary. She later spoke with police officers and was able to identify Mary’s body and

clothing from the crime-scene photographs.



              On these facts, a jury found the defendant guilty of first-degree murder and

theft of property valued five hundred dollars ($500) or less. Following a sentencing

hearing, the defendant was sentenced to life incarceration for first-degree murder and a

consecutive sentence of eleven months and twenty-nine days incarceration for theft. The

defendant now appeals.



              The defendant first argues that the trial court erred in failing to give the jury



                                              5
a special instruction on circumstantial evidence. During the jury charge conference,

defense counsel requested the following special instruction:

         Before an accused may be convicted of a criminal offense based upon
         circumstantial evidence alone, the facts and circumstances must be so
         strong and cogent as to exclude every other reasonable hypothesis save
         the guilt of the defendant. A web of guilt must be woven around the
         defendant from which the defendant cannot escape and from which facts
         and circumstances the jury could draw no other reasonable inference save
         the guilt of the defendant beyond a reasonable doubt.

This special instruction is based on language found in State v. Wilson, 924 S.W.2d 648,

649 (Tenn. 1996)(quoting State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610 (1971)).

The trial judge denied the defendant’s request, stating, “I do find that the pattern charge

substantially repeats that language, although not perhaps quite as eloquently, it has been

approved many times and I believe it is adequate to charge the jury today.”



                  The written jury instructions included in the record reflect the following

instruction on circumstantial evidence:

                Circumstantial evidence consists of proof of collateral facts and
         circumstances which do not directly prove the fact in issue but from which
         that fact may be logically inferred.

                When the evidence if 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
         and 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.1



         1
           W e note tha t the recor d fails to includ e a trans cript of the ins tructions a s read to the jury.
Failure to include a transcript normally waives review of appellate issues pertaining to jury instructions
because without a com plete record, it is impossible for this Court to discern whether the written jury
instruction conform s to the instr uctions a s read to the jury and thus, wh ether erro r actually occ urred.
See T.R.A .P. 24(b); State v. Jones, 623 S.W.2d 129 (Tenn. Crim. App. 1981). In the instant case,
however, we will review the issue presented, as the State does not dispute that the requested special
jury ins truct ion w as no t read to the jury.

                                                         6
This instruction is substantially similar to T.P.I.-Crim. 42.03 (4th ed. 1997), which has

been cited with approval by this Court. See State v. Charles W. Sanderson, No.

01C01-9608-CR-00384, Wilson County (Tenn. Crim. App., filed September 19, 1997, at

Nashville). When the instructions given are a correct statement of the law and fully and

fairly explain the applicable law, it is not error for a trial judge to refuse to give a special

instruction requested by a party. State v. Bohanan, 745 S.W.2d 892, 897 (Tenn. Crim.

App. 1987); see State v. West, 844 S.W.2d 144, 151 (Tenn. 1992). The instruction at

issue here was accurate and fully and fairly explained the applicable law on circumstantial

evidence. The defendant’s requested instruction is nothing but a restatement, albeit a

fancier restatement, of the same legal principles embodied by T.P.I.-Crim. 42.03 and the

instruction given by the trial court. The trial court did not err in refusing to give the

defendant’s proposed special instruction instead of the instruction given.



               Next, the defendant challenges his convictions for first-degree murder and

theft of property valued five hundred dollars ($500) or less, arguing that the evidence is

insufficient to support his convictions. When a defendant challenges the sufficiency of

the convicting evidence, we must review the evidence in the light most favorable to the

prosecution in determining whether “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 (1979); see State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). We do

not reweigh or re-evaluate the evidence and are required to afford the State the strongest

legitimate view of the proof contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the proof. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978).



              As applicable to this case, first-degree murder is the premeditated and



                                               7
intentional killing of another person. T.C.A. § 39-13-202(a)(1) (1997). Our Legislature

has defined “premeditation” as “an act done after the exercise of reflection of judgment”

and without excitement or passion. § 39-13-202(d). Here, the evidence showed that the

defendant’s relationship with the victim had become complicated, to say the least. The

defendant had had an intimate relationship with the victim for several years. When he

and the victim moved in with Lynda, however, things began to get messy: The defendant

developed another intimate relationship with Lynda, which caused he and Lynda to move

out of the house and in with Alan, a friend of Lynda’s. Apparently, however, the

defendant’s intimate relationship with Lynda did not cause the end of his intimate

relationship with the victim. The defendant wrote love letters to the victim, in which he

called the victim his “precious wife” and referred to himself as her “husband.” The

romantic feelings conveyed by these love letters were consistent with the victim’s belief

that on the weekend of July 7, she and the defendant were again moving in together in

a house they had previously viewed and selected together.



              Meanwhile, however, the defendant had announced his plans to marry

Lynda later in July. The defendant said he intended to “get rid of” the victim. On the

night the victim was killed, the defendant was the last person to be seen with her.



              Near the crime scene, which the defendant had visited earlier that day, a

gun shot was heard between 9:00 and 9:30 that night. The defendant returned home,

which was only a ten to twenty minute drive from the crime scene, around 10:20 p.m.

When the defendant returned home, he was driving the truck that had previously been

at the victim’s house. He lied to Lynda by telling her he had driven the victim to the

interstate so she could hitchhike to California and that he had seen her accept a ride from

two men. He also lied to the police about his whereabouts the evening of the murder,



                                            8
telling them he was home the entire evening. His failure to identify the victim when shown

photographs of the crime scene is also suspicious: He told the police he did not know the

victim pictured in the photographs, even though he had known the victim intimately for

years, whereas a waitress at a local bar, a mere casual acquaintance of the victim’s,

identified the victim’s body and clothing from the same photographs.



              The victim was shot in the back of the head by a large caliber gun, such as

a .357, from a distance of more than twenty-four inches. The defendant had ready

access to a .357 caliber Magnum pistol, which was kept in an unlocked gun cabinet in

Alan’s house, where the defendant was staying. The .357 caliber Magnum pistol, which

had been fully loaded a month or two prior to the murder, carried a spent shell just a day

or two after the murder. Although no fingerprints were found on the pistol, latex gloves

were found in the trash can at Alan’s house, the same trash can that also contained the

victim’s keyring and love letters from the defendant to the victim.



              The totality of these circumstances, considered in the light most favorable

to the State, justifies the conclusion that after the exercise of judgment, and without

excitement or passion, the defendant intentionally killed the victim. See § 39-13-

202(a)(1), (d). As such, the evidence is sufficient to support the defendant’s conviction

for first-degree, premeditated murder.



              Theft occurs when a person, with the intent to deprive the owner of

property, “knowingly obtains or exercises control over the property without the owner’s

effective consent.” T.C.A. § 39-14-103 (1997). Here, because the victim believed that

she and the defendant were moving in together on the weekend of July 7, she solicited

the help of her neighbors in packing her belongings in boxes and placing them in the back



                                            9
of a pick-up truck. Following the victim’s murder, the defendant returned home, driving

that same truck. The next day, the defendant began unpacking some of the victim’s

belongings from the truck. The victim’s keyring and love letters addressed to her were

later found in the trash can in Alan’s house. These circumstances are sufficient to

support a conviction for theft of property under § 39-14-103.



                   Finally, the defendant argues that the trial court erred in ordering his eleven

month, twenty-nine day sentence for theft to run consecutively to his life sentence for first-

degree murder.             The presentence report, as corrected by the parties during the

sentencing hearing, reflects that the defendant, who was thirty-seven years old at the

time of the murder, has fifteen prior convictions, which include the following:

misdemeanor theft, five counts of petit larceny, burglary, two counts of third-degree

burglary, aggravated assault, aggravated kidnapping, attempted felonious escape,

obtaining property by false pretense, and federal convictions for burglary of a post office

and theft. The defendant admits he has abused alcohol and used marijuana. Neither

party presented any testimony or evidence other than the presentence report at the

sentencing hearing.



                   For the first-degree murder charge, because the State did not seek the

death penalty or a life sentence without the possibility of parole, the trial court imposed

a sentence of life imprisonment with the possibility of parole. For the theft charge, based

on the existence of several enhancing factors but no mitigating factors, the trial court

imposed a sentence of eleven months and twenty-nine days incarceration.2 The trial

court then turned to T.C.A. § 40-35-115 in order to determine whether the theft sentence

should run consecutively to the murder sentence. The trial court found that the defendant



       2
           The lengt h of th is sen tenc e is no t cha llenge d on a ppe al.

                                                           10
is a “professional criminal” who has knowingly devoted his life to criminal acts as a major

source of income, § 40-35-115(b)(1); that the defendant is an offender with an extensive

record of criminal activity, § 40-35-115(b)(2); and that the defendant is a “dangerous

offender” whose behavior indicates little or no regard for human life and no hesitation for

committing a crime in which the risk to human life is high, § 40-35-115(b)(4). As such,

the trial court ordered the defendant’s eleven month, twenty-nine day sentence for theft

to run consecutively to his life sentence for first-degree murder.



              A defendant who fits into any of the categories enumerated under § 40-35-

115(b) qualifies for consecutive sentencing. Here, the record reflects that the defendant

has fifteen prior convictions, fourteen of which are felony offenses. Additionally, the

defendant admits he has used marijuana. These circumstances justify a finding that the

defendant has an extensive record of criminal activity. § 40-35-115(b)(2).



              “When a defendant falls within the statutory classifications for eligibility to

be considered for consecutive sentencing, the only remaining considerations are whether

(1) the sentences are necessary in order to protect the public from further misconduct by

the defendant and (2) <the terms are reasonably related to the severity of the offenses.’"

State v. Zachery L. Barnes, No. 01C01-9704-CC-00138, Rutherford County (Tenn. Crim.

App. filed March 5, 1998, at Nashville)(citing State v. Wilkerson, 905 S.W.2d 933, 938

(Tenn.1995)). Here, the trial court failed to make these findings on the record. Even so,

the defendant exhibits a disregard for authority and refusal to adjust his behavior to

society’s standards, as evidenced by his history of violating parole and his conviction for

attempted felonious escape. Moreover, the defendant’s behavior has escalated to a

more violent and dangerous nature, i.e., the premeditated murder of a victim by a bullet

to the back of the head from a distance greater than two feet, followed by the theft of the



                                            11
victim’s belongings. Under such circumstances, consecutive sentences are reasonably

related to the severity of the offenses committed and are necessary to protect the public

from the defendant’s misconduct. See Barnes, C.C.A. No. 01C01-9704-CC-00138.



              The defendant contends, however, that based on the authority of the

unreported case of State v. James E. Gordon, No. 01C01-9611-CC-00495, Williamson

County (Tenn. Crim. App. filed February 5, 1998, at Nashville), concurrent sentencing is

more appropriate than consecutive sentencing in the instant case. In Gordon, the

defendant was convicted of first-degree, premeditated murder and aggravated burglary.

The trial court sentenced him to life in prison without the possibility of parole on the

murder conviction and to a consecutive six year sentence in prison on the aggravated

burglary conviction. On appeal, this Court noted that because the defendant had already

been sentenced to spend the remainder of his life in prison, requiring him to serve a

consecutive six year sentence seemed “meaningless under our law.” James E. Gordon,

No. 01C01-9611-CC-00495, slip op. at 21. This Court further noted that “a consecutive

sentence would not serve the purpose of protecting the public against further criminal

conduct for a defendant who has already been sentenced to life without the possibility of

parole.” Id. For this reason, this Court modified the defendant’s sentence to reflect a

concurrent sentence rather than a consecutive sentence. Id.



              The reasoning expressed in Gordon is simply inapplicable to the instant

case. Unlike the defendant in Gordon, the defendant here was sentenced to life

incarceration with the later possibility of parole. As such, consecutive sentencing would,

in fact, serve to protect the public against any further criminal conduct of the defendant.

Thus, the trial court did not abuse its discretion in imposing consecutive sentences.




                                            12
            Finding no merit to the defendant’s arguments, we affirm the defendant’s

convictions and sentence.



                                             _______________________________
                                             JOHN H. PEAY, Judge



CONCUR:



______________________________
THOMAS T. W OODALL, Judge



______________________________
L. TERRY LAFFERTY, Special Judge




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