IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 22, 2000

STATE OF TENNESSEE v. JIMMY WAYNE BAKER

Direct Appeal from the Circuit Court for Bedford County

No. 14303, 14416 Charles Lee, Judge

No. M1999-00454-CCA-R3-CD - Filed March 14, 2001

The Defendant, Jimmy Wayne Baker, was convicted by a Bedford County jury of first degree felony

murder during the perpetration of or the attempt to perpetrate theft of property, first degree

premeditated murder, and aggravated arson. The trial court merged the felony murder conviction

with the premeditated murder conviction. The Defendant was sentenced as a Range I standard

offender to life imprisonment for the first degree murder conviction and to twenty-one years and nine

months incarceration for the aggravated arson conviction, to be served concurrently. The Defendant

now appeals, arguing the following: (1) that the trial court erred in instructing the jury to determine

whether one of the witnesses was an accomplice; (2) that the evidence presented at trial was

insufficient to convict the Defendant of premeditated murder, felony murder, or aggravated arson;

(3) that the trial court erred in failing to instruct the jury that they must agree unanimously on a

particular set of facts to support a finding of first degree felony murder; (4) that his convictions of

both premeditated murder and felony murder violated the Double Jeopardy Clause and the

Supremacy Clause; (5) that the Defendant was not properly informed of the elements of and facts

necessary to constitute the offense of theft of property as the underlying felony in the felony murder

conviction; (6) that the Defendant’s sentence for aggravated arson was excessive; and (7) that the

trial court erred in failing to instruct the jury on all elements of the offenses charged. After review,

we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and

DAVID H. WELLES, JJ., joined.

John E. Herbison, Nashville, Tennessee, for the appellant, Jimmy Wayne Baker.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General;

William Michael McCown,District Attorney General; Robert G. Crigler, Assistant District Attorney

General; and Ann L. Filer, Assistant District Attorney General, for the appellee, State of Tennessee.
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OPINION 

The Defendant, Jimmy Wayne Baker, was convicted by a Bedford County jury of murder in

perpetration of theft or attempted theft of property, premeditated murder, and aggravated arson. The

two counts of first degree murder were merged into one conviction for which the Defendant received

a life sentence. The trial court sentenced the Defendant to twenty-one years and nine months

incarceration for the aggravated arson conviction and ordered that it be served concurrently with the

life sentence for the murder conviction. On appeal to this Court, defense counsel filed an Anders

brief alleging that the appeal was frivolous. See Anders v. California, 386 U.S. 738 (1967); State

v. Ingram, 994 S.W.2d 626 (Tenn. Crim. App. 1998). However, defense counsel presented the

following arguments in his brief: (1) that the Defendant’s sentence for aggravated arson was

excessive, and (2) that the trial court erred in instructing the jury to determine whether or not Patrick

Wingate was an accomplice. This Court allowed the Defendant to review the record and raise

additional issues. As such, the Defendant filed a pro se brief arguing the following: (1) that the

evidence presented at trial was insufficient to convict the Defendant of premeditated murder, felony

murder, or aggravated arson (the Defendant’s issues three, four and five); (2) that the trial court erred

in instructing the jury to determine whether or not Patrick Wingate was an accomplice (the

Defendant’s issue eight); (3) that the trial court erred in failing to instruct the jury that they must

agree unanimously on a particular set of facts to support a finding of first-degree felony murder (the

Defendant’s issue six); (4) that the convictions for both premeditated murder and felony murder

violated the Double Jeopardy Clause and that the “merger rule” as announced by this Court violates

the supremacy clause (the Defendant’s issue one); (5) that the Defendant was not properly informed

of the elements and facts necessary to constitute the offense of theft of property as the underlying

felony in the felony murder conviction (the Defendant’s issue two); and (6) that the trial court erred

in failing to instruct the jury on all elements of the offenses charged (the Defendant’s issue seven).

Having reviewed the record, we affirm the judgment of the trial court.

I. FACTUAL BACKGROUND

Viewing the facts in the light most favorable to the State, the following events took place in

Bedford County on December 15, 1997. On that morning, the Defendant picked up Patrick Wingate

and drove to Steven Pugh’s residence on Warner’s Bridge Road. Pugh and Jeff Gibbs were at

Pugh’s trailer when the Defendant and Wingate arrived. The Defendant, Wingate and Gibbs were

all employed by Pugh as general laborers. That morning, the four men went to Wheel to salvage

some items from Pugh’s former residence that had burned down. After loading some items in

Pugh’s truck, the men drove back to Pugh’s Warner’s Bridge Road residence and unloaded the items

near a shop building behind Pugh’s trailer. Gibbs testified that the men got back to Pugh’s house

around ten o’clock in the morning. 

That afternoon, the Defendant, Wingate and Pugh left again to get some gravel. Gibbs

remained at the trailer. Gibbs testified that the three men came back to Pugh’s residence around 2:30

that afternoon without the gravel. Pugh’s neighbor, John Gold, also testified that he saw the

Defendant, Pugh and Wingate pull into Pugh’s driveway at approximately 2:30 in the afternoon. The
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Defendant was driving Pugh’s truck. Wingate was sitting on the passenger side and Pugh was sitting

between them. Gold testified that the Defendant parked Pugh’s truck in front of Pugh’s shop, and

all three men went into the shop. Gold further testified that he later saw smoke coming from the

shop door and that the Defendant’s car was gone at that time.

Gibbs testified that sometime that afternoon while he was stacking wood outside the shop,

he “heard something hit the floor real hard” inside the shop. At the time, the Defendant, Wingate

and Pugh were all in the shop. The Defendant came outside and told Gibbs that Pugh was drunk and

had fallen off the bar stool. The Defendant told Gibbs to go to the trailer and get a faucet. The

Defendant then went back into the shop. 

Unable to locate the faucet, Gibbs went back to the shop, where he saw the Defendant

standing in front of the door. The Defendant told Gibbs that he should go back to the trailer. Gibbs

went to the trailer, and a few minutes later Wingate came to the trailer and told Gibbs that they

should leave. At that time, the Defendant, Wingate and Gibbs all left Pugh’s residence. 

Regarding what happened inside the shop, Wingate testified that he was stacking some

kindling inside the shop when he heard a thud behind him. He turned around to find Pugh lying on

the floor. Wingate testified that he and the Defendant helped Pugh back onto the stool that he had

been sitting on, and Wingate resumed stacking the wood. Wingate testified that he heard another

thud, and he turned around to find Pugh on the floor again. Wingate testified that the Defendant was

standing over Pugh with a stick in his hand. He further testified that he saw the Defendant hit Pugh

three or four times in the head. The Defendant told Wingate to make sure that nobody came to the

door. Wingate was watching the door when he felt the Defendant’s hand on his shoulder, and the

Defendant said, “It’s time for us to go.” Wingate testified that before leaving, he saw Pugh’s body

on the floor of the shop with a piece of burning cardboard in front of the body.

The Defendant’s account of the events that took place in the shop differs from that of

Wingate. The Defendant testified that he was about to leave the shop to get beer when he heard

Pugh fall. The Defendant said that he and Wingate put Pugh back on the stool, and he went outside.

The Defendant testified that when he came back to the shop, Wingate met him at the door, and they

left. According to the Defendant, Wingate told him that he (Wingate) hit Pugh in the head. 

Jeff Gibbs testified that he, the Defendant and Wingate left Pugh’s residence. They stopped

at a bank and a liquor store and then went to the Defendant’s house. Gibbs testified that the

Defendant bought Gibbs some whiskey at the liquor store. Paralee Williams, the owner of the liquor

store, testified that the Defendant smelled like smoke when he came in the store. Gibbs testified that

when they arrived at the Defendant’s home, the Defendant’s wife informed the three men that Pugh

was dead. Gibbs testified that the Defendant and Wingate began crying. The three men then drove

to the sheriff’s department, and Gibbs testified that on the way, the Defendant told him to “keep on

saying that [Pugh] fell off of a bar stool and hit his head.” Wingate testified that the Defendant

turned up the radio and advised him that it would be in Wingate’s best interest not to say anything

about what had happened. 
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Wanda Shirley, Pugh’s girlfriend, arrived at the home that she shared with Pugh at about

three o’clock and saw smoke coming out of the shop. Shirley called 911. Shirley testified that

Pugh’s truck was parked up against the large door of the shop which was very unusual. 

Matt Doak, a firefighter, testified that Pugh’s body and the floor immediately surrounding

Pugh’s body were on fire when he arrived. Detective David Adams of the Bedford County Sheriff’s

Department testified that only the floor around Pugh’s body was burned. He also testified that

burned checks, keys and a broom were found near the body. 

Dr. Charles Harlan, the consulting forensic pathologist for Bedford County, performed the

autopsy on Pugh. Harlan testified that Pugh died from blunt trauma to the head. Pugh had at least

four different lacerations on his head, which Harlan testified were caused by a rapid succession of

blows to the head. Harlan testified that all four of the lacerations went through to the bone and that

the skull was fractured under three of the wounds. According to Harlan’s testimony, a linear, firm

object, such as a baseball bat, broom handle, pool cue or lead pipe, probably caused the head injuries.

Harlan testified that Pugh also had fourth-degree burns over eighty percent of his body. Harlan

testified that Pugh was alive when he was on fire. 

Evidence was presented at trial to prove that in the days following the fire, the Defendant and

Wingate tried to pass checks from Pugh’s bank account. The Defendant testified that he saw

Wingate take two of Pugh’s checkbooks and trace Pugh’s name on the checks. The Defendant then

presented one of those checks in the amount of $2,500 for payment at a local bank. Evidence was

also presented at trial that Wingate and the Defendant went to a car dealership where Wingate

attempted to pass a two-party check from Pugh’s account to buy a van. That check was in the

Defendant’s possession when he was arrested.

Diana Harrison, a document examiner with the Federal Bureau of Investigation (FBI),

examined the checks that were cashed by the Defendant. Although she determined that the

signatures had been simulated or traced, Harrison was unable to render an opinion as to who signed

the documents. However, all of the checks that had simulated signatures were made out to the

Defendant or Wingate. The checks made out to the Defendant on Pugh’s account totaled $7,100.

Steve Elliot,CaptainofDetectives for the Bedford County Sheriff’s Department, interviewed

the Defendant after his arrest. Elliot testified that the Defendant admitted to being at the shop on that

afternoon. According to Elliot, the Defendant said that Pugh fell off of a bar stool and hit his head.

The Defendant told Elliot that he and Wingate helped Pugh back onto the stool and that the

Defendant then left.

After his arrest, the Defendant took the police to Anthony Road where they found checks that

had been burned. Pugh’s name was on the checks. The Defendant also took the police to his home

on Lakewood Drive to find a pair of burned jeans and a burned checkbook. 
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II. ANALYSIS

 A. Sufficiency of the Evidence

The Defendant argues that there was insufficient evidence to convict him of first degree

premeditated murder, first degree felony murder or aggravated arson. We disagree. 

When an accused challenges the sufficiency of the evidence, an appellate court’s standard

of review is whether, after considering the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.

1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Dykes,

803 S.W.2d 250, 253 (Tenn. Crim. App. 1990) overruled on other grounds, State v. Hooper, 29

S.W.3d 1 (Tenn. 2000).

In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate

the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this

Court substitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State,

286 S.W.2d 856, 859 (Tenn. 1956); State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999). Questions

concerning the credibility of the 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. Liakas, 286 S.W.2d at 859.

This Court must afford the State of Tennessee the strongest legitimate view of the evidence

contained in the record, as well as all reasonable inferences which may be drawn from the evidence.

State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant

removes the presumption of innocence and raises a presumption of guilt, the convicted criminal

defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty

verdict. Id.

1. Premeditated Murder

Sufficient evidence was presented at trial to convict the Defendant of first degree

premeditated murder. First degree premeditated murder is the premeditated and intentional killing

of another person. Tenn. Code Ann. § 39-13-202(a)(1). Once a homicide has been established, it

is presumed to be second degree murder, and the State has the burden of proving premeditation to

raise the offense to first degree murder. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999) (citing State

v. Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998)). Premeditation is defined as "an act done after the

exercise of reflection and judgment." Tenn. Code Ann. § 39-13-202(d). 

"Premeditation" means that the intent to kill must have been formed prior to the act

itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused

for any definite period of time. The mental state of the accused at the time the

accused allegedly decided to kill must be carefully considered in order to determine
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whether the accused was sufficiently free from excitement and passion as to be

capable of premeditation.

Id. Premeditation is the process of thinking about a proposed killing before engaging in the

homicidal conduct. State v. Brown, 836 S.W.2d 530, 540-41 (Tenn. 1992).

The existence of premeditation is a question of fact for the jury to determine and may be

inferred from the circumstances surrounding the offense. State v. Rosa, 996 S.W.2d 833, 837 (Tenn.

1999) (citing Brown, 836 S.W.2d at 539)). The use of a deadly weapon upon an unarmed victim

may support the existence of premeditation. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997).

Viewing the evidence in the light most favorable to the State, a jury could have reasonably

found that the Defendant killed Steven Pugh after the exercise of reflection and judgment. Wingate

testified that he saw the Defendant hit Pugh three or four times on the head with a stick. According

to Wingate, the Defendant then told Wingate to make sure that nobody came to the door. 

In addition to Wingate’s testimony, Jeff Gibbs testified that he was outside the shop stacking

wood when he heard a “thud” inside. The Defendant came outside and told Gibbs that Pugh was

drunk and had fallen off a bar stool. The Defendant then told Gibbs to go to the trailer to look for

a faucet. Unable to find the faucet, Gibbs went back to the shop. The Defendant, who was nervously

shaking his arm, told Gibbs to go back to the trailer. Gibbs also testified that the Defendant told him

repeatedly that he should tell the authorities that Pugh had fallen off a stool and hit his head.

2. Felony Murder

Sufficient evidence was presented at trial to convict the Defendant of felony murder

committed during the perpetration or the attempted perpetration of a theft. Felony murder is defined

as “[a] killing of another committed in the perpetration of or attempt to perpetrate any first degree

murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse or aircraft piracy

. . . .” Tenn. Code Ann. § 39-13-202(a)(2). In this case, the Defendant was charged with felony

murder during the perpetration of or attempt to perpetrate theft of property over $500. 

Evidence was presented at trial that the Defendant, along with Patrick Wingate, tried to pass

checks from Pugh’s account within several days after Pugh’s death. The Defendant testified that he

saw Wingate take two of Pugh’s checkbooks and trace Pugh’s name on the checks. This is

corroborated by testimony from an FBI expert that four checks made payable to the Defendant from

Pugh’s account were signed with simulated signatures. The Defendant then presented one of those

checks in the amount of $2,500 for payment at a local bank. Evidence was also presented at trial that

Wingate and the Defendant went to a car dealership, and Wingate attempted to pass a two-party

check from Pugh’s account to buy a van. That check was in the Defendant’s possession when he was

arrested. Thus, there was ample evidence from which a jury could determine that the Defendant had

committed murder in the perpetration of or attempt to perpetrate a theft of property valued at more

than $500.
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3. Aggravated Arson

Sufficient evidence was presented at trial to convict the Defendant of aggravated arson. An

offender commits arson by knowingly damaging any structure by means of a fire or explosion with

the intent to destroy or damage the structure for any unlawful purpose. Id. at § 39-14-301. A person

commits aggravated arson who commits arson as defined in Tennessee Code Annotated § 39-14-301

when one or more persons are present therein. Id. § 39-14-302. 

In this case, there is ample evidence from which a jury could conclude that the Defendant set

fire to Pugh’s shop while Pugh was still inside. Wingate testified that when he and the Defendant

left the shop, there was a piece of cardboard burning in front of Pugh’s body. The owner of a liquor

store where the Defendant stopped on the way from Pugh’s residence testified that the Defendant

smelled like smoke.

B. Jury Instructions

1. Accomplice Testimony

The Defendant argues that the trial court erred by instructing the jury to determine whether

Wingate was an accomplice, rather than instructing the jury that Wingate was an accomplice as a

matter of law. An accomplice is one who “knowingly, voluntarily and with common intent

participates with the principal offender in the commission of the crime alleged in the charging

instrument.” State v. Griffis, 964 S.W.2d 577, 588 (Tenn. Crim. App. 1997). “When the facts of

a witness’ participation in a crime are clear and undisputed it is a question of law for the court to

decide.” State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). In this case, the

Defendant argues and the State concedes that the trial court should have declared Wingate to be an

accomplice as a matter of law.

This determination is important because in Tennessee a criminal defendant cannot be

convicted solely on the uncorroborated testimony of an accomplice. State v. Bigbee, 885 S.W.2d

797, 803 (Tenn. 1994). Whether the testimony of an accomplice has been sufficiently corroborated

is a question for the jury. State v. Heflin, 15 S.W.3d 519, 524 (Tenn. Crim. App. 1999). However,

corroborating evidence need not be sufficient in and of itself to support a conviction, but it must

fairly connect the Defendant with the commission of the crime. State v. Gaylor, 862 S.W.2d 546,

552 (Tenn. Crim. App. 1992). 

We note initially that this issue has been waived because the Defendant failed to timely file

a motion for a new trial within thirty days of the day his sentences were entered. Tenn. R. App. P.

3(e). “Questions concerning the instructions are generally deemed to be waived in the absence of

objection or special request, unless they contain plain error.” State v. Cravens, 764 S.W.2d 754, 757

(Tenn. 1989). A jury instruction constitutes plain error where it affects the substantial rights of the

accused. Tenn. R. Crim. P. 52(b). We conclude that there was no plain error in the jury instruction

in this case.
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Wingate had previously been convicted for charges based upon the same facts. Therefore,

we conclude in this case that the trial court should have instructed the jury that Wingate was an

accomplice as a matter of law. However, we hold that such error was harmless. We conclude that

ample evidence was presented to the jury to corroborate Wingate’s testimony. Jeff Gibbs testified

that while he was outside the shop, he heard something hit the floor inside. Immediately thereafter,

the Defendant came outside and told Gibbs that Pugh had fallen off of a stool. Gibbs testified that

the Defendant told him to go to the trailer. When Gibbs returned, the Defendant was standing

outside the shop shaking his arm nervously. The Defendant told Gibbs to go back to the trailer.

Moments later, Wingate went to the trailer and told Gibbs it was time to go. Gibbs also testified that

on the ride to sheriff’s office, the Defendant told Gibbs to “keep on saying that [Pugh] fell off of a

bar stool and hit his head.” 

In addition to Gibbs testimony, the Defendant’s own testimony corroborates Wingate’s

accomplice testimony to some extent. The Defendant’s testimony places the Defendant at the scene

of the crime at the time the crime was committed. Pugh’s neighbor, John Gold, testified that he saw

the Defendant, Pugh and Wingate drive up to the shop that afternoon. Soon thereafter, Gold testified

that he saw smoke coming from the shop, and the truck was gone. Moreover, there was testimony

from firefighters that Pugh’s body was on fire when they arrived at the shop just a short time after

the Defendant left. The owner of the liquor store where the Defendant stopped after leaving Pugh’s

residence on the day of his death testified that the Defendant smelled like smoke when he came in.

Also, bank employees testified that in the days following Pugh’s death, the Defendant cashed checks

on Pugh’s account. Although the trial court erred by failing to instruct the jury that Wingate was an

accomplice as a matter of law, the error was harmless because sufficient corroborating evidence was

presented to the jury.

2. Felony Murder Instruction

The Defendant next argues that the trial court erred in failing to instruct the jury that they

must agree unanimously on a particular set of facts to support a finding of first degree felony murder.

Specifically, the Defendant argues that the trial court failed to instruct the jury that it had to agree

unanimously as to whether the alleged killing was committed during the act of perpetrating theft or

the act of attempting to perpetrate theft. 

In this case, the Defendant was convicted of felony murder in the perpetration of or the

attempt to perpetrate theft over $500. Felony murder is defined as “[a] killing of another committed

in the perpetration of or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary,

theft, kidnapping, aggravated child abuse or aircraft piracy . . . .” Tenn. Code Ann. § 39-13-

202(a)(2). The trial court instructed the jury that its verdict must be unanimous, and the jury did in

fact vote unanimously to convict the Defendant of felony murder. In the case of felony murder, there

is no legal requirement that a jury verdict specify whether the killing was committed during the

actual perpetration of the felony or during an attempt to perpetrate the felony. See id. Thus, the

Defendant’s argument is without merit. Additionally, our review of the trial court’s jury instructions
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reveals that the trial court properly instructed the jury as to each element of each offense charged,

from which we conclude that the Defendant’s pro se issue number seven is without merit.

C. Sentencing

The Defendant argues that his sentence for aggravated arson was excessive. Specifically, the

Defendant argues that the trial court erred in starting at the midpoint of the sentencing range and then

adjusting the sentence up for enhancement factors and down for mitigating factors. The Defendant

argues that the trial court should have begun with the minimum sentence. We conclude that the trial

court properly sentenced the Defendant. 

The Defendant was sentenced as a Range I standard offender to twenty-one years and nine

months for aggravated arson. Aggravated arson is a Class A felony. This sentence was to be served

concurrently with the Defendant’s life sentence for the murder of Steven Pugh. In sentencing the

Defendant, the trial court applied the following enhancement factors: (1) “[t]he [D]efendant has a

previous history of criminal convictions or criminal behavior in addition to those necessary to

establish the appropriate range,” id. § 40-35-114(1), and (5)” [t]he [D]efendant treated or allowed

a victim to be treated with exceptional cruelty during the commission of the offense.” Id. § 40-35-

114(5). The only mitigating factor that the trial court applied was that the Defendant assisted

authorities in detecting or apprehending Wingate. Id. § 40-35-113(9).

When a criminal defendant challenges the length, range, or manner of service of a sentence,

the reviewing court must conduct a de novo review of the sentence with a presumption that the

determinations made by the trial court are correct. Id. § 40-35-401(d). This presumption, however,

“is conditioned upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991). In the event that the record fails to show such consideration, the review of the

sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

The presumptive sentence for a Class A felony is the midpoint of the sentencing range unless

there are enhancement or mitigating factors present. Id. § 40-35-210(c). If there are enhancement

or mitigating factors, the court must start at the presumptive sentence, enhance the sentence as

appropriate for the enhancement factors, and then reduce the sentence in the range as appropriate for

the mitigating factors. Id. § 40-35-210(e). This Court has held that this presumptive sentence also

applies where there are enhancement and mitigating factors. See State v. Hodges, 7 S.W.3d 609, 631

(Tenn. Crim. App. 1998); State v. Chance, 952 S.W.2d 848, 850-51 (Tenn. Crim. App. 1997). The

weight to be given each factor is left to the discretion of the trial judge. State v. Shelton, 854 S.W.2d

116, 123 (Tenn. Crim. App. 1992). However, the sentence must be adequately supported by the

record and comply with the purposes and principles of the 1989 Sentencing Reform Act. State v.

Moss, 727 S.W.2d 229, 237 (Tenn. 1986). 

If our review reflects that the trial court followed the statutory sentencing procedure, that the

court imposed a lawful sentence after having given due consideration and proper weight to the
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factors and principles set out under the sentencing law, and that the trial court’s findings of fact are

adequately supported by the record, then we may not modify the sentence "even if we would have

preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The

defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d

at 169.

In this case, the trial court followed the proper statutory sentencing procedure by starting at

the midpoint of the range in sentencing the Defendant. The presumptive sentence for aggravated

arson is the midpoint of the sentencing range unless there are enhancement or mitigating factors

present. Tenn. Code Ann. § 40-35-210(c). Although the Defendant interprets the statute to mean

that this presumptive sentence only applies where there are no enhancement or mitigating factors,

this Court has held that this presumptive sentence also applies where there are enhancement and

mitigating factors. Hodges, 7 S.W.3d at 631; Chance, 952 S.W.2d at 850-51. As such, the trial court

properly started at the midpoint of the sentencing range and increased the sentence for the

enhancement factors and reduced the sentence for the mitigating factor. 

D. Double Jeopardy and Supremacy Clause

The Defendant argues that his convictions for premeditated murder and felony murder

violated the Double Jeopardy Clauses of the United States and Tennessee Constitutions. Both

clauses state that no person shall be twice put in jeopardy of life or limb for the same offense. U.S.

Const. amend. 5; Tenn. Const. art. I, § 10. In addition to protecting against a second prosecution for

the same offense where the defendant was either convicted or acquitted, this clause has also been

interpreted to protect against multiple punishments for the same offense. North Carolina v. Pearce,

395 U.S. 711, 717 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989); State

v. Phillips, 924 S.W.2d 662, 664 (Tenn. 1996). 

In this case, the Defendant was found guilty of both felony murder and premeditated murder

for the same offense. However, the two verdicts were merged under one conviction. Thus, the

Defendant was subject to only one sentence of life imprisonment. No double jeopardy problem

exists where “the trial court’s entry of only one judgment of conviction imposing only one sentence

of life imprisonment protects the defendant from receiving multiple punishments for the same

offense.” State v. David Eric Price, No. E1999-02684-CCA-R3-C, 2000 WL 1015914, at *31 (Tenn.

Crim. App., Knoxville, July 25, 2000); State v. Addison, 973 S.W.2d 260, 266-67 (Tenn. Crim. App.

1997); State v. Zirkle, 910 S.W.2d 874, 889 (Tenn. Crim. App. 1995).

The Defendant also argues that the trial court’s merging of the two murder convictions into

one conviction violates the Supremacy Clause of the United States Constitution. The Supremacy

Clause states that the United States Constitution and the laws made in pursuance thereof shall be the

supreme law of the land. U.S. Const. amend. 6, clause 2. The Defendant argues that the merger rule

is in conflict with the Double Jeopardy Clause, and that the Double Jeopardy Clause should trump

the merger rule by virtue of the Supremacy Clause. As we have concluded that there is no peril of

double jeopardy in this case, there is no conflict with the Supremacy Clause. We conclude that the
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merger rule is in fact not in conflict with the Double Jeopardy Clause, but rather is a means of

avoiding any Double Jeopardy issues. This issue is without merit.

E. Sufficiency of the Indictment

The Defendant argues that he was not properly informed of the elements and facts necessary

to constitute the offense of theft of property sufficient to support a conviction for murder during the

perpetration of theft of property. Specifically, the Defendant argues that the indictment failed to

include the factual allegations of the underlying felony. Both the United States and Tennessee

Constitutions require that an accused be sufficiently informed of the “nature and cause of the

accusation.” U.S. Const. amend 6, 14; Tenn. Const. art. I, § 10; see also State v. Hill, 954 S.W.2d

725, 727 (Tenn. 1997). These provisions have been interpreted to require that an indictment: 

(1) provide notice to the accused of the offense charged; (2) provide the court with

an adequate ground upon which a proper judgment may be entered; and (3) provide

the defendant with protection against double jeopardy. 

Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000); see also Hill, 954 S.W.2d at 727; State v. Byrd,

820 S.W.2d 739, 741 (Tenn. 1991).

The Tennessee Code Annotated further requires that an indictment 

state the facts constituting the offense in an ordinary and concise language, without

prolixity or repetition, in such a manner as to enable a person of common

understanding to know what is intended, and with that degree of certainty which will

enable the court, on conviction, to pronounce the proper judgment . . . .

Tenn. Code Ann. § 40-13-202.

In this case, the indictment read as follows:

THE GRAND JURORS of BEDFORD County, Tennessee, duly impaneled and

sworn, upon their oath, present that:

JIMMY WAYNE BAKER

on or about the 15th DAY OF DECEMBER, 1997, in BEDFORD County, Tennessee

and before the finding of this indictment, intentionally, knowingly and recklessly did

kill STEVEN GILBERT PUGH, during the perpetration of or attempt to perpetrate

a crime THEFT OF PROPERTY OVER $500, in violation of Tennessee Code

Annotated § 39-13-202, and against the peace and dignity of the State of Tennessee.

We conclude that the indictment sufficiently set forth the elements and factual basis for the

charges against the Defendant. The indictment specifically referred to the date of the offense, the

name of the victim, and the crime theft of property. Again, this issue is without merit.
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Accordingly, the judgment of the trial court is AFFIRMED.

___________________________________ 

ROBERT W. WEDEMEYER, JUDGE