### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A pr il 14, 200 9 S es sio n

STA TE OF TEN NES SEE v. JOHN BRU NN ER

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. 07-02047 Chris Cr aft, Jud ge

No. W2008-01444-C CA-R 3-CD - F iled Jul y 17, 2009

The de fenda

nt, J ohn Br

unner, w as convic ted by

a Shelby C o u n t y C ri m i n al Court jury of sec ond deg ree murder a

nd domestic assault. He was sentenc ed as a Rang e I , violent offende r to conc urre nt terms of twe nty -three y ear s, six months and eleve n months, twenty -nine da y s. On appe al, he a

rg ues that (1) the e vidence was insufficient to sustain his c onviction f or second de g ree murder; ( 2) the trial court e rre d in admitting the victim’s eviction letter to the defe ndant into e vidence ; (3) the tria l court imp os e d a

n e xce ssi ve se nte nc e ; ( 4) the tr ia l c ourt e rr e d b y fai lin g to m e rg e the do me sti c a ssa ult conviction with the second deg ree murder conviction; and (5) c umulative err or entitles him to relief. After our re view, we aff

irm the judg ments of the trial c ourt.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

A L AN E. G L EN N , J ., delivere d the opinion of the court, in which J OHN E VE R E TT W I L L I AMS and J.C. M C L IN , J J ., joined.

An dr e B. Mathis ( on

a pp e a l) a nd Rob e rt Parr is ( a t tr ia l) , M e mph is, Te nn e sse e , f or the a pp e lla nt, J ohn Br unner.
Robert E. Cooper, Jr., Attorney Gene ral a

nd Reporter ; D avid H. F indley , Senior Counsel; W illiam L

. Gibb o n s , D is tr ic t A tt o r n e y G e n e r a l; an d

K ar e nCo o k

an d Ro b e rt R a tt o n , A s s is ta

n t D is trict Attorney s Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

This case s arises out of the J uly 2006 strang ulation death of the defe ndant’s eig hty -two-y ear

old mother, Opal B runner , for w h i ch t he def endant wa s indicted on one c ount of first deg ree preme ditated murder and one count of domestic a ssault. The def endant did not dispute that he killed his mother, but he asser

ted that he did so in self-de fense afte r she hit him with her ca ne.-2- State’ s P roof

J o Ann McB rien, the de fenda nt’s sister and victim’s daug hter, testified that she visited the victim weekly

and spoke to he r daily

prior to her death. The victim was eig hty -two y ear s old and in poor hea lth; she was bli nd and could only walk with a cane or other aid. The victim ’s ca retaker built a ramp off the back porch of the house to a id in the victim’s mobil ity . McB rien re called that her f ather died appr ox imately a y ea r an d a half be fore her mother ’s murder , and her fathe r and mother had lived in separ ate residence s on the s ame property due to her f ather ’s snoring . Her

fathe r lived in the main house, and her mother lived in a sm all house on the property that she ca lled “her castle.” After

her f ather died, the victim moved bac k into the main house and the de fenda nt moved into the small house previously occupie d by

the victim. Mc Br ien said that afte r her fathe r died, the victim gave some of her father ’s hand tools to McBr ien’s son and his “johnboat” and tra iler to her

car etake r.

McB rien testified that she last saw he r mother a wee k befor e her

death a nd talked to her

on the te le ph on e tw ic e the da y sh e die d, July

23 , 2 00 6. She c a lle d th e vic tim ’s ho us e aro un d 7 :00 p. m. that ni g ht, bu t no on e a ns we re d, so sh e c a lle d th e de fe nd ant to inq uir e int o the vic tim ’s wh e re a bo uts

. The de fenda

nt told her that the victi m wa s asleep, a nd the two had a

“norma l conver sation.” The

ne xt mor nin g , th e de fe nd ant c a lle d M c B ri e n a nd inf or me d he r that he h a d f

ound the vic timde a d in the bac ky ard. Mc Br ien immediately went to the victim ’s hous e where she saw the de fenda nt sitt ing on the front por ch smoking a cig are tte, mouthing the words “I didn’t do it.” McB rien a cknowledg ed that the victim and the def endant ha d fig hts when the defenda nt was a teena g er, like “ ever y body does when they ’re g rowing up.”

B e nn ie Cr ow de r, the vic tim ’s c are take r, te sti fi e d th a t he wo rk e d f or the vic ti m fi rst a s a
car penter and then as her full-time car etake r af ter he r husband died. O ne of his re sponsibili ties was to take the victim to her doc tor’s appointments. He assisted the victim in walking to his vehicle and then utiliz ed her

whee lchair to take h er fr o m h i s vehicle into the doc tor’s off ice. He said that the vic timc ou ld n ot w a lk o uts ide wi tho ut s ome kin d of a ssi sta nc e and he ld on to t

hin g s in do or s to he lp her ba lance

. The ramp he buil t for the vic tim was approximately sevente en fe et long , and he ne ver witnessed her

walk the distanc e in the last month of her life. The vic tim was also leg ally blind.

Crowder testified that approximately a month be fore the victim died, he installed a bolt lock on the inside of her bedroom door. Crow der ide ntified an e viction notice sig ned by the victim that the victim had him write to the def endant. He sent the letter by cer tified mail to the defe ndant at the

a dd re ss o f the vic timand

the de fe nd ant. Th e le tte r, date d Jun e 27 , 2 00 6, or de re d th e de fe nd a nt t o
vacate the victim’s prope rty by J uly 20, 2006.

On c ro ss- e xami natio n, Cr ow de r te sti fi e d tha t the ra mp h e bu ilt

fo r t he vic timha d h and

ra ils

s o s h e c o u l d

h o l d o n t o t h e r ai l s an d wa l k

. He n ev er s aw t h e vi ct i m wa l k wi t h a c an e e v en t h o u gh sh e ha d c ane s in

he r h ome . In th e la st m on th o f t he vic tim ’s lif

e , Cr ow de r n e ve r s aw h e r o uts ide in the y ard unle ss he was taking he r to the doctor. A sked i f h e h ad re ason to believe the victim and-3-

de fe nd ant a

rgue d, Cr ow de r s a id “[o ]nly wh a t she tol d me” bu t adm itt e d tha t the y ne ve r ar g ue d in his prese nce.
Deputy Anthony Scott Chambers with the S helby County Sheriff’ s Depa rtment testified that he re sponded to a “ DOA c all” at 6884 Commander Road in Milli ng ton on J uly 24, 2006. Offic er Allen Smith was alrea dy

on the sce ne whe n he ar

rived, a nd the d ef

en d an t was sitting on the f ront porch. D eputy

Chambers obser

ved the victim’s dea d body ly ing f ace -up in the bac ky ard a

nd helped

secur e the sc ene.

Se rg eant Ro bert B utt e ri c k w iththe Ge ne ra l Inv e sti g a tio n B ur e a u o f t he She lby

County She ri ff ’s Dep artme nt t e sti fi e d th a t he wa s c a lle d to the sc e ne a t 68 84 Com mand e r R oa d to investigate the death of the victim. Serg eant B utterick photog raphe d the s cene and pre pare d a sketc h of the a rea . He noted that the victim was not wea ring any shoes and her socks wer e par tially off he r fe e t. F ro m th e sma lle r h ou se in w hic h th e de fe nd ant re sid e d, Se rg e ant B utt e ri c k re c ov e re d a c a ttl e prod with a blond ha ir on it a nd a letter from the victim advising the def endant he was be ing e victed. Offic ers r ecove red a

cane from the de fenda

nt’s possession, a cane f

rom the def

endant’ s residenc e, and two ca

nes fr om the victim’s bedroom.

Sa mue l Ro ok e r te sti fi e d tha t he me t the de fe nd ant in Fe br ua ry 20 07 wh e n the y we re in j a il toge ther. He noted that the def endant wa s able to wa lk “[p] retty g ood.” Ac cording

to Rooker, the defe ndant told him that he was in jail for “ matricide,” meaning he kil led hi s mother. The de fenda nt

was wor ried that his sister would g et the victim’s as s ets when she died, and he did not want “that bit c h .

. . g e tti ngwh a t [he ] kis se d a ss f or fi ft y y e ars .” Roo ke r r e c a lle d that th e de fe nd ant t old him that his fa t h er h ad s ai d his cars, tools, and other belong ings w ere g oing to be the def endant’ s, but

a ft e r h e die d s ome thi ng s w e re g ive n to oth e r p e op le inste a d. Th e de fe nd ant t old Roo ke r t hat hi s plan was f

or the victim to put a ll of her be longing s in his name and then put her in a nursing home. Aft e r th e v ic ti m w o u ld n o t a g r e e to g o to a n u r s in g h o me , th e d e f e n d an t c o n s id e r e d “ za

p ping he r with a cattle prod.”

Rooker testified that the de fenda nt told him that he killed the victim by choking her. The defe ndant explained to Rooker that he gra bbed the victim high on throat like he ha d lear ned in a se lfdefe nse cla ss, tripped her to the g round with his leg , and, whe n she fought back, use d his other hand to pin her shoulder dow n. The defenda nt told Rooker that the i ncident occurre d around 6:00 p.m., but h e d id n o t c a ll th e a

u th o r it ie s an d tr ie d to “ ma k e it lo o k li k e th e r e w a s n ’ t [a ] s tr ug g le.” The defe ndant then “me ssed around until about eig ht [ the next] morning befor e he c alled . . . his sister.” The de fenda

nt told R ooker that he could not be lieve he had killed his mother and ha d tried to make it look li ke an a ccide nt. The def en d ant neve r expressed r eg ret for killing the victim. Rooker admitted that he had be en convic ted of a pproxi mately

ten fe lonies.

Dr. Kar en Chance llor, chief medical examiner with the Shelby County Medica l Ex aminer’ s Offic e, testified that she perf ormed the a

utopsy of the victim o n J u l y 2 4 , 2006. The victim had bruises and sc rape s on her ne ck, bruises on he r fa ce a nd both arms, and lac erations on the left side of her scalp, lef t ha nd, and the back of her rig ht shoulde r. Asked if she could deter mine when the-4-

inj ur ie s o c c ur

re d, Dr . Ch anc e llo r state d th a t “ [t]he y a pp e a r t o h a ve oc c ur

re d n e ar t he tim e of

de a th or at the time of death.” The interna l examination of the victim reveale d, among other thing s, that the victim’s hy oid neck bone was fr actur ed.

Dr. Chanc ellor testified that the vi ctim’s injuries wer e consistent with manual stra ng ulation and blunt forc e tra

uma to the hea d. I n her opinion, the victim was struc k at least si x t i m es on t he back of the hea d. Dr. Chanc ellor stated that strang ulation g ener ally has t o last around two or three minutes in order to ca

use death, but unconsciousness would ensue in eig ht to twelve sec onds. She noted that the victim’s death m ay h av e occur red soone r g iven her

ag e and he alth. Dr. Chanc ellor

c on c lud e d th a t th e vic tim ’s de a th “ re su lte d fr om str angulatio n wh ic h c a us e d la c k o f b loo d f

low to the bra in and re sulted in her death. She also had som e blunt forc e inj uries on the ba ck of the head that contributed to her

death.”

Serg eant Ve rnon Dollahite, Jr. with the Shelby County Sheriff’ s Depa

rt m ent testified that he wa s a ssi g ne d to the Ge ne ra l Inv e stig a tio n B ur e a u in July 20 06 and wa s th e le a d c a se of

fi c e r i n the investig ation of the victim’s death. Serg eant Dollahite took a witness statement fr om the defe ndant in which the de fenda nt denied any

involvement in the victim’s death. Af ter Serg eant Dollahite lear

ned that the victim’s cause of death was strangulation and blunt force trauma, he took another statement fr om t h e defe ndant in which the de fenda nt admitted killi ng the victim after she attacke d him with her ca

ne. At the time of th e i n t ervie w, Serg eant Dollahite did not obser ve any bruises or c ont usions on the defe ndant but noted that the def endant ha d an obvious “medic al condition.” S erg eant Dollahite rec alled that some witnesses had inf ormed him that there had bee n difficulties betwe en the de fenda nt and the victim.

Defendan t’s P roof

Th e de fe nd ant t e sti fi e d th a t hi s f a mil y wa s not ve ry

a ff e c tio nate duri nghis c hil dh oo d. B oth of his pa rents, but pr imarily his f

ather
, disciplined him with spanking s approximately once a month. After spending four y ear s in the Navy Reserve s, the defe ndant ear ned a de g ree in acc ounting a nd had worke d as an a ccounta

nt and bond salesman. H e stated that he suffere d fr om a host of medica l conditions, including, among other thi ng s, L eg ionnaires’ Disease
, a burst blood vessel in hi s brain, a hea rt attac k, and he ha d had triple by pass surg ery . Hi s re l at ionship with t he victim had bee n

“ [k]in d o f s tr e ssf

ul [a nd ] [t]en se ” ov e r t

he y e ars

. He de sc ri be d the vic tim a s “c on tr oll ing ” and sa id she wa nted things done her w ay

.
Th e de fe nd ant te sti fi e d that his fi na nc ia l sit uatio n de te ri or a te d du e to his me dic a l pr ob le ms,
c a us inghim to m ov e ba c k to the vic tim ’s ho me in De c e mbe r 200 5. No t lo nga ft e r h e mov e d in , th e ir

r e lati o n s h ip w o r s e n e d

b e c a u s e th e v ic ti m “ w a s ju s t a lw ay s y e ll in g , a lw ay s tr y in g to b e in

c o n tr o l[

. ]” He noted that the victim que stioned his smoking and clea nliness. The defe ndant said he w as taking antidepre ssant and anti-a

nx iety medications that we re pr escr ibed by his psy chiatrist, as we ll as hear t

and blo od pr e ssu re me dic a tio ns , at th e tim e he kil le d th e vic tim

. Th e de fe nd ant s a id h e ha d d if fi c ult y ba lanc ingbu t c ou ld w a lk w ith ou t a c ane “ on c e [he ] . . . g [o]t g oin g [.]” He state d th a t th e vict im-5-

c ou ld n ot w a lk v e ry

we ll w ith ou t th e a id o f a

c ane or sti c k a nd wo uld a t ti me s g o o uts ide us ingtho se items for support.

The de fenda

nt testified that his statement to police was a n acc urate acc ount of what ha ppened

on the da y of the vic tim ’s de a th, e xce pt he “ pr ob a bly hit he r m or e tha

n [he ] sa id i n th a t st a te me nt” but was embarra ssed t o admit he hit his mot her w ith a cane . He r eca lled that the victim had followed him ou t of the ma in ho us e and sta rt e d hittin g him wi th he r c ane

. He g ra bb e d he r c ane and

pu lle d it

awa y fr om h e r, the n u se d it

to h it h e r “m or e tha

n a cou ple of tim e s. ” He sa id h e “ jus t ki nd of los t it” beca use he w anted he r to stop. He admitted that he probably could have g otten awa y from her

u n t i l t h e p o i n ts h e g r a

b b e d h i s a r m

. T h e d e f

e n d an ts t a t e d

t h a th e c h e c k e d

o nt h e v i c t i m ’ s b o dy a number of times duringthe nig ht “to be sure she wa sn’t being disturbed by like squ i rr els or something.” He c alled 911 the ne x t morning.

On cr oss-examination, the defenda nt testified that the victim was small-fr amed a nd weig hed 105 pounds and that he w ei gh ed ap p roxi mately 190 pounds at the time of the murde r. He acknow ledg ed that the victim allowed him to live in the small house rent a nd utilit y fre e, but he wa s supposed to start pay

ing f or utiliti es i n J uly
, the m onth the vi ctim was kil led. He admitted that the victim called the police on him the month befor e her death, a nd he said he had the “ impression that [t he victim] was scare d of [ him] at t imes.” He also admitted that he rece ived an eviction notice f rom the victim in mid-J uly 2006. Howeve r, acc ording to the defe ndant, he talked to the victim about the letter a n d s h e t old him he did not have to move if he star ted taking his medicine re g ularly . He

c la ime d th a t a lth ou g h h e ha d th e re so ur c e s to mov e ou t a t that po int
, he did no t wa nt the vic timto be lef t alone.

Reca lling the da

y of the murde r, the de fenda nt testified that he g ot into an argument with the vic timin t

he kit c he n a

ro un d 6:0 0 p. m. He le ft the ma in ho us e and wa lke d to the bo tto m of the ra mp in t he ba c ky ard

wh e re the vic timc a

ug ht u p wi th him

and sta rt e d h itt inghim

wi th h e r c oll a

ps ibl e
cane

. He did not know how many times she made contac t w ith his body

. He g rabbe d the ca ne fr om the victim and used it to hit her “a number of times.” The two fe ll over and la nded beside eac h other on the g round, with the def endant’ s left ar

m unde r the victim’s ne ck. He then g rabbe d the victim’s neck w ith his right hand a nd squeezed it f

or appr ox imately

one to two minutes until t he victim was rende red unc onscious.

The de fenda

nt a dmitted that he left the dece ased victim outsi de and did not summon help. He a cknowledg ed that his sister ca lled about an hour afte r t he incident a sking a bout the victim, and he told her that the victim was fine a nd in bed. He looke d out on the victim severa l times during the night to make sure she was not beingdisturbed and, at 2:00 a.m., noticed that bruises we re star ting to appea r. He left at 5:00 a.m. to buy cig are ttes and, sometime betwe en 7:00 and 8:00 a.m., c alled the police to r e p o rt th e v ic ti m’ s d e a th

. H e e xp la in e d th a t h e c a ll e d a t th a t ti me “ b e c a u s e it was daylight an d [ he] felt like they could see what had ha

ppened a nd would have a

clea r view.” The defe ndant said he did not ca ll the night bef ore be cause he wa s in shock and did not know what to do. He state d that he wa s embarr assed that he had kil led hi s mother and asserted that he loved her and did not intend to kil l her.-6-

The jury convicted the defe ndant of the lesser-inc luded offe nse of se cond degree murder a s well as domestic a ssault.

AN AL YSI S

I. Su ff iciency of the Evid ence

T h e d ef en d an tch al l en ges t h e s u ff i ci en cy o f t h e c o n v i ct i n g ev i d en ce

. W h en re v i ew i n g a challeng e to the sufficie ncy of the convicting evidenc e, we note that the rele vant qu es t i o n o f t he revie wing court is “w h ether, after viewing the evidenc e in the lig ht most favorable to the prosec ution, anyrational trier of fa ct could have found the e ssential elements of the crime be y ond

a re a so na ble do ub t.” Jac ks on v. Vi rg ini a , 44 3 U. S. 30 7, 31 9, 99 S. Ct. 27 81 , 27 89 (1 97 9) ; se e a lso Te nn . R. Ap p. P. 13( e ) (“ F ind ing s of g uil t in c ri min a l ac tio ns wh e the r b y the tr ia l c ourt

or jur y sh a ll be set a side if the evidence is insufficient to support the findi ng s by the t rier of fac t of g uilt bey ond

a re asonable doubt.”); State v. Evans, 838 S.W .2d 185, 190-92 (Te nn. 1992); State v. Ander son, 835 S.W .2d 600, 604 (Tenn. Crim. App. 1992). All que stions involving the cr edibility of witnesses, the weig ht and value to be g iven the evidenc e, and a ll factua l issues are r esolved by the trier of

fac t. See S t a t e v

. P a

p p a s , 7 5 4 S

. W

. 2 d

6 2 0 , 6 2 3 ( T e n n

. C r i m

. A p p

. 1 9 8 7 )

. “ A g u i l t y v e r d i c tb y t h e j u r y,
a pp ro ve d b y

the tr ial ju dg e , a c c re dit s th e te sti mony of the wi tne sse s f

or the State and

re so lve s a ll conflicts in favor of the the ory of the State.” State v. Gra ce, 493 S.W .2d 474, 476 (Tenn. 1973) . Our supreme c ourt stated the r ationale f or this rule:

This well-settl ed ru l e rests on a sound foundation. The trial judg e and the jury see the witnesses face to face , hear their testimony

and obser

ve their de meanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice t o d e t e r m i n e t h e w e i g h tan d

c r e d i b i l i t y

t o b e g i v e n t o th e t e s t i m o n y o f w i t n e s s e s

. In the trial for

um alone is t h er e h u man atmosphere and the totality of the e vidence

c ann ot b e re pr od

uc e d w itha

wr itt e n r e c or d in

thi s Co ur t.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963)) . A jury conviction re moves t h e presumption of innoce nce w ith which a defe ndant is initi ally

cloake d and re place s it with one o f guilt, so that on appeal, a convicted defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

. Second deg ree murder is de fined as “[ a] knowing killing of a nother.” Tenn. Code Ann. § 39-13-210( a)( 1) (2006) . “A pe rson ac ts knowingly with r espec t to a

result of the pe rson’s conduc t when the pe rson is awa re that the conduct is re aso n ably cer tain to cause the re sult.” I d. § 39-11-302( b). “[A] knowing sec ond deg ree murder is strictly a ‘r esult-of-c onduct’ off ense. . . . [T] he ‘nature of the conduct’ that cause s death is inconseque ntial.” State v. Pag e, 81 S.W.3d 781, 787 (Tenn. Crim. App. 2002) (citing State v. Ducke r, 27 S.W .3d 889, 896 (Tenn. 2000)). Whether the def endant “ knowing ly ” killed the victim is a question of fact for the j ury

. See State v. Inlow, 52 S.W .3d 101, 104-05 (Te nn. Crim. App. 2000). The jury may infer intent f

rom the cha

rac ter of theI n h i s br i ef
, t h e def en dan t ci t es t h e domes t i c as s au l t s t at u t or y pr ov i s i on , bu t h i s ar g u men t f ocu s es e n t i r el y on 1

h is se c o n d d e g re e m u rd e r c o n v ic tio n

.
-7- of fe ns e and fr om a ll the fa c ts and c ir c ums tanc e s surr ound ing the of fe ns e . Se e id. a t 10 5 ( c iti ngSta te v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)). I f a defe ndant acts intentionally , meaning he acte d with a conscious objective or desire to c ause the death of the victim, then the require ment of “know ingly” is met. Tenn. Code A nn. § 39-11-301( a)( 2).

The defend an t d o e s n o t d e n y th a t h e k il le d

th e v ic ti m, b u t a

r g u e s th a t t

h e St a te p r e sented insufficient e vidence that he k no win gly killed the victim. He a sserts that he “ lost it ” and attacked 1 the victim in response to her h i t t i ng him with her ca

ne, and that he was ta

king a nti-depre ssant medication at or

near the time of the murde r.

I n the light most favor able to the S tate, the evidenc e shows that the defendant strang led the victim for appr ox i m at ely two minutes although she would have be en re ndere d unconscious af ter eig ht to twelve sec onds. The victim was also struck on the back of the head at least six times, which the medica l examiner opined contributed to her death. The testimony

at trial established that the defe ndant was possibly

motivated to kill t he victim beca use she w an t ed him to move out of her house or be cause she had pr eviously g iven awa

y some of his fath er ’s b elonging s to which the defe ndant fe lt entitled. I n addition, the testimony of Samuel Rooker indicated that the def endant ha d plan n ed to kill t he victim in order to g et control of he r asse ts. The jury hear d the def

endant’ s testimony that he killed the eig hty -two-y ear -old victim, who was blind and unable to walk without

a s s i s t an c e , o n l y a f

t e r s h e a t t a c k e d

h i m w i t h h e r

c an e an d
, b y i t s v e r d i c t , d i s c r e d i t e d t h a tt e s t i m o n y. I n this reg ard, it wa s prese nted to the jury that the def

endant ha d no bruises or c ontusions when he

wa s in te rv ie we d b y

po lic e the da

y a ft e r t he mur de r, and

the e vid e nc e sh ow e d th a t th e vic tim wa s h it

mu lt ip le times in the back of the he a d. Al tho ug h th e de fe nd ant m e nti on s th a t he wa s ta kin g a nti

de pr e ssa nt m e dic a tio n at or

ne ar t he tim e of

the mur de r, the re wa s n o p roof th at hi s tak ingthi s
me d ic a ti o nma d e h im

in c a p a b le o f kn o w in g h is c o n d

u c t w o u ld

r e s u lt in th e v ic ti m’s deat

h

. We conclude that the evidenc e wa s sufficient f or a r ational trier of

fac t to fi n d t hat the def endant knowing ly

killed the victim.

II. Eviction L ett er

Th e de fe nd ant a

rgue s th a t th e tr ia l c ourt e rr e d in a dmi tti ngan e vic tio n le tte r f ro m th e vic tim t o t h e d e f e n d an ti n t o e v i d e n c e a s t h e l e t t e r c o n s t i tu t e d

i n a d m i s s i b l e h e ar s ay. Citi ngTe nn e sse e Rul e of Evidenc e 803(3) , the def endant a sserts that the cour t inappropriate ly

admitted the letter to prove the de fe nd ant’ s state of min d b e c a us e the he ars ay

e xce pti on

a pp lie s to pr ov ingthe de c lara nt’ s, in t his

c a se the vic tim ’s , state of min d. Th e State , a lso c iti ngRul e 80 3( 3) , a rgue s th a t th e c ourt

pr op e rl y admitted the letter be cause it reflec ted the victim-dec lara nt’s state of mind.

Hea rsay is defined a s “a state ment, other than one made by the dec lara

nt while testify ing at the trial or he aring , off

er ed in evidenc e to prove the truth of the matter asser ted.” Te nn. R. Evid. 801(c)

. As a gene ral rule, hear say is not admissible at trial unless it falls under one of the exceptions-8-

to the rule ag ainst hear say

. I d. 802. When a n out-of-c ourt statement is not offe red f or its truth, the statement is non-hea

rsay and does not fa l l u n d er t h e exclusionary rule. See Neil P. Cohen et al., Tenne ssee L aw of

Evidence § 8.01[4] [h] (5th ed. 2005). N on-hea rsay can be offere d to prove the

e ff e c t on the lis te ne r. I d. § 8 .0 1[7]. Th e de te rm inatio n of wh e the r a state me nt is h e ars ay lie s w ith in the so un d d isc re tio n o f t

he tr ia l c ourt , a

nd we wi ll not dis tur

b its rul ing a

bs e nt a sho wi ng of an a

bu se of discre tion. St ate v. F lood, 219 S.W .3d 307, 313 (Tenn. 2007)

.

Her e, it appea

rs that both the def

endant a nd the State have misconstrue d the basis for the trial

c ourt ’s int

ro du c tio n o f t

he e vic tio n le tte r. I n a dmi tti ngthe le tte r, the tr ia l c ourt state d:

Iam g oing to a llow this l etter in, not to showthe truth of the matter mentioned in the letter. This ser

ves as notice to vacate my proper ty . You must be vacated by blank or a F ED wa

rra nt will be issued.

I t’ s o bv iou s th a t th e y

sh ou ld h a ve ha d a

lawy e r d ra ft thi s. But it w ill be to sh owthe state of

min d o f t he de fe nd ant, wh e the r i t’ s tr ue or no t, i f h e re c e ive d it

.

I n other wor ds, it would go to show mo t ive, not to show what she wa s planning on doing.

We conclude that the trial court did not abuse its discretion in admitting the letter. The letter

wa s n ot o ff

e re d to pr ov e the tr

uth of the ma tte r as ser te d, that th e vic timwa nte d th e de fe nd a nt t o
va c a te the pro per

ty , b ut i ns te a d it

wa s n on -h e ars ay

of fe re d to pr ov e the e ff

e c t on the de fe nd a ntlistener which she d light on his possible motive.

III . Se nt e nc ing

The de fenda

nt argues that the trial c ourt imposed an excessive se ntence. Specifica lly , he

asser ts that the trial court e rrone ously found that he posse ssed a de adly wea pon during the commission of the offe nse, fa iled to find any mitigating fac tors, and enha nced his sente nce w ithout placingits reasons for

arr iving at the final sentenc ing de cision on the rec ord.

At the sentenc ing he aring , J o Ann McB rien, the de fenda n t ’s s i s t er a

nd victim’s daug hter, te sti fi e d th a t sh e is s c are d of the de fe nd ant be c a us e thi s wa s no t th e fi rs t ti me he ha d b e e n v iol e nt. She is af ra i d t h at h e will kill her a fter he is relea sed fr om prison. Teri McB rien, the de fenda nt’s niece , testified that the victim thought the de fen dant was “ a g olden child” a nd did whateve r she could to take c are of him.

I n sentenc ing the defe ndant, the trial c ourt found thre e enha nceme nt fac tors: (1) pre vious his tor y of c ri min a l c on vic tio ns ba se d on the de fe nd ant’ s DU I , a ssa ult , a nd va nd a lis m c on vic tio ns , wh ic h th e c ourt

did no t g ive “ a

wh ole lot

of we ig ht” ; ( 2) the vi cti m was part ic ula rl y vu lne ra ble beca use of her ag e and phy sical di sabilities, which the court gave “a fair amount of we ight” ; and (3) the def endant possesse d a dea dly wea pon, a ca ne, duringthe commission of the offe nse, which the-9-

court g ave “ a fair amount of weig ht.” The court revie wed the mitigating fac tors and found that none applied. The court imposed a sentenc e of twenty -three and a half y ear s for the se cond deg ree murder convicti o nan d

e le v e nmo n th s , tw e n ty

- n in e d ay s f o r th e d o me s ti c a s s a

u lt c o n v ic ti o n , to b e serve d

concur rently

.
When an ac cused c halleng es the leng th and manner of ser vice of a sente nce, it is the duty

of this court to conduct a de novo r e v ie w o nth e r e c o r d “ w it h a p r e s u mp ti o nth a t t

h e determinations made by the cour t from which the a

ppeal is take n are co rr ec t

. ” Tenn. Code Ann. § 40- 35-401(d) (2006). This pre sumption is “conditioned upon the a ffirmative showing in the rec ord that the trial

c o u rtc o n s i d e r e d

t h e s e n t e n c i n g p r i n c i p l e s an d a l l r e l e v an t f a c t s a n d c i r c u m s t an c e s

. ” S t a t e v

. A s h b y, 823 S.W .2d 166, 169 (Tenn. 1991) . The pre sum p t i o n d o es n ot apply to the leg al conc lusions

rea ched by

the trial cour

t in sentencing the ac cused or to the deter minations made by

the trial cour

t wh ic h a re pr e dic ate d u

po n unc on tr ov e rt e d f

a c ts. State v. B utl e r, 90 0 S.W. 2d 30 5, 31 1 ( Te nn . Cr im. App. 1994); State v. Smith, 891 S.W .2d 922, 929 (Tenn. Crim. App. 1994); S tate v. B onestel, 871 S.W .2d 163, 166 (Tenn. Crim. App. 1993) , overr uled on other g rounds b y S t at e v. Hooper , 29 S.W .3d 1, 9 (Tenn. 2000)

.

I n co nducting a de novo r e v ie w o f a s e n te n c e , th is c o u rt m

u s t c o n s id e r

( a ) an y e v idence

rec eived at the trial and/or se ntencinghear ing, ( b) the pre sentenc e re port, (c) the pri n ci p les of sentenc ing, ( d) the a

rg uments of counse l relative to sente ncing alternatives, (e) the nature and char acte ristics of the offe nse, (f) any mitigating or enha

nceme nt fac tors, (g ) any

statements made by the ac cused in his own beha lf, and (h) the accused’ s potential or l ack of potential for r ehabilitation or treatment. Tenn. Code Ann. §§ 40- 35-103, -210 ( 2006); State v. Taylor, 63 S

. W

. 3 d 400, 411 (Tenn. Crim. App. 20 0 1 ). The pa rty challeng ing the sentenc e imposed by the trial cour

t has the burden of

establishing that the s en t en ce is errone ous. Tenn. Code Ann. § 40- 35-401 (2006)
, SentencingCommi ssion Cm ts.; Ashby , 823 S.W .2d at 169.

I n imposing a specific sentenc e within a rang e, a trial court “ shall consider, but is not bound b y ” c er t ai nad v i s o ry s en t en ci n g gu i d el i n es , i n cl u d i n g t h at t h e “ m i n i m u m s en t en ce wi t h i nt h e r an ge of punishment i s t he sente nce that should be imposed” and that “ [t ]he sentence leng th within the rang e should be a djusted, as appropr iate, by the prese nce or absenc e of mitigating and enha nceme nt fac tors[.] ” Te nn. Code Ann. § 40-35-210( c)( 1), (2) (2006). The weig hing of the var ious mit igating and enha nceme nt fac tors is “left to the trial court’s s ound discretion.” State v. Carter , 254 S.W .3d 335, 345 (Tenn. 2008)

.
Th e de fe nd ant f

ir st a rgue s th a t th e tr ia l c ourt

e rr e d in f

in di ng th at he p os se sse d a de a dly

we a po n, a c ane , d ur ingthe mur de r o f t

he vic tim

. Se e Te nn . Code Ann. § 40- 35 -1 14 (9 ). He a sse rt s t h a ta l t h o u g h h e a d m i t t e d h i t t i n g t h e v i c t i m w i t h t h e c an e , h e r c a u s e o f d e a t h w a s s t r an g u l a t i o n

. In this reg ard, the court stated:

[T]he re ’s no qu e sti on that he a tta c ke d h e r w itha

c ane a s a de a dly we a po n b e c a us e a dea dly wea pon is not just a firea

rm but any

thing that in its use or manne r of use can-10-

cause serious bodily

injury or death. I n this case , it did help t o cause her de ath, eve n though stra

ng ulation was the c ause of death.

A “ [d]e a dly

we a po n” is “ [a]n y

thi ng that in

the mann e r o f i ts u se or

int e nd e d u se is c a

pa ble of c a us ingde a th o r s e ri ou s b od ily inj ur y [.] ” I d. § 39 -1 1- 10 6( a )( 5) (B ) ( 20 06 ). “ Se ri ou s b od ily inj ur y ” is b od ily

i n j u r y i nv o lvi ng“ (A ) [a ] sub sta

nti a l r isk of de a th; (B ) [p ]ro tr a c te d unc on sc iou sn e ss; (C) [e] x treme phy sical pain; (D) [p]rotracted or obvious disfigure ment; or (E) [p]rotracted loss or substantial impairment of a f unct i o n o f a bodily

member, or g an or me ntal fac ulty [.] ” I d. § 39 -1 1- 10 6( a )( 34 ) ( 20 06 ). Th is c ourt ha s p re vio us ly

he ld that a wa lki ng c ane c an c on sti tut e a de a dly

wea pon. See State v. Ha g an Paul Robe rts, I I , No. 03C01-9707-CR-00259, 1998 WL 748472, at *4 (Tenn. Crim. App. Oc t. 19, 1998), perm. to appe al denied (Tenn. May 3, 1999). We discer n no err or in the trial court’ s application of this enha nceme nt fac tor under the fac ts of this case.

The de fenda

nt next contends that the tria l court er roneously failed to find that he satisfied the mit ig ating fa c tor

tha t he “ wa s su ff

e ri ngfr om a

me nta l or

ph y sic a l c on dit ion

that si g nif

ic a ntl y reduc ed [his] culpability

for the of

fense [.] ” See T enn. Code Ann. § 40-35-113( 8). In this reg ard, the cour t stated, “I ’m urg ed that he’s a sick man and that’s why he should be mitigated. And ther e was proof in the record that he has had illnesses. He testified to some of that. Howeve r, I

don’t see that these illnesses aff

ect him.” The rec ord re flec ts no proof that the de fenda nt’s illnesses impacted his ability to formulate intent or r educe his culpability for the of

fense s. W e dis cer

n no abuse of discretion in the trial c ourt’s dec lining to find this miti g ating fac tor applica ble.

Th e de fe nd ant l a stl y

c on te nd s th a t the tr ia l court e nh anc e d h is s e nte nc e wi tho ut p la c ingits

rea sons f or arr iving at the final sentenc ing decision on the rec ord. On the contra ry , the re cord shows the trial cour

t stated its reasons for

finding or not finding the various fac tors and noted which fa ctors it gave “pa

rticularly g reat weig ht” and not “much weig ht at all.” More over, the weig hing of various mi t i g ating and enha

nceme nt fac tors is in the trial court’s sound discre tion, which discretion wa s broade ned by

the 2005 amendments to the sentenc ing a ct. Carter , 254 S.W .3d at 345. I n sum, the

re c or d s ho ws tha

t th e tr ia l c ourt

tho ro ug hly

and th ou g htf

ull y arr ive d at a

se nte nc e c on sis te nt w ith the purposes and principles of sentenc ing. The trial court’s finding s are supported by the re cord, a nd

we c onclude that the de fenda nt’s sentenc e is not excessive.

IV. Me rger

Th e de fe nd ant a

rgue s th a t th e tr ial c ourt e rr e d in fa ili ngto m e rg e his do me sti c a ssa ult conviction with his conviction for sec ond deg ree murder, thus viol ating his due proce ss rig hts and protec tion ag ainst double jeopar dy . He a sserts, re ly ing on State v. Anthony , 817 S.W .2d 299 (Tenn. 19 91 ), that hi s d

ue pr oc ess ri ghts w e re vio la te d b e c a us e the do me sti c a ssa

ult wa s “ e sse nti a lly incidental” to the se cond deg ree murder. H e asser ts that the dual convictions violate his protec tion ag ainst double jeopar dy

beca use the domestic assault occur red at exactly

the same time a s the murder and the same fa cts wer e used to prove both offense s.T h e cou r t a ddr es s ed mer g er a n d due proc es s con ce r n s m os t re ce n t l y i n St at e v

. Ri ch ar ds on , 251 S. W

. 3d 438 2 ( T enn

. 200 8). Af

t er a r evi ew of

t he l aw, t he R i cha r dson t he cour t cl ar i f i ed t hat t he D i xon t wo- part t es t was t o be us ed i n s t ea d of

, n ot i n c on

j u n ct i on w i t h
, An t h on y

. I d. a t 443.

-11- I n respo n s e to the def

endant’ s argument for mer g er, the trial court state d that the offe nses “ar e sepa rate and d i s t i n ct crimes be cause murder ha s nothing to do with family or household.” There afte r, in ruling on the def endant’ s motion for new trial, the tr ial court stated:

[T] he domestic violenc e assa ult was complete be fore the murder

.

He repe atedly assaulted her and one can murder someone who is not a r elative or a house hold member. And so, they have c ompletely

differ ent eleme nts.

Neither one has to be complete d befor e the other one take s place beca

use of the diffe rent e lements.

So If in d th a t t h e y ar e s e p ar a te c r im e s [. ]

I n Anthony
, our supreme court heard consolidated appe als to determine w hether it violated due proc ess for the defe ndants to be convic ted of both kidnapping and ar med robbe ry . I d. at 300-01. The court observe d that “eve ry robber y , by definition, involves some detention ag ainst the will of the victim, if only

long e noug h to take g oods or money from the pe rson of the vic tim,” but reiterated that “[t] his does n o t m ea n that the leg islature intended that ever y robber y should also constitute a kidnapping
, even thoug h a litera l rea ding of the statute mig ht sugg est otherwise .” I d. at 306. The court de termined that due proce ss require d an inquiry into “whether

the conf inement, movement, or detention is essentially

incidental to the ac company ing f elony

. . . or whether it is significa nt enoug h, in and of itself, to wa

rra nt independent pr osecution.” I d.

Our supre me cour

t then modified the Anthony test into a two-par

t test in S tate v. Dix on, 957 S

. W

. 2 d 5 3 2 (T en n

. 1 9 9 7 ), a cas e in wh i ch t h e de fe n d an t wa s co n v i ct edo f a ggra v at edk i dn ap p i n g, ag g rav a te d

a s s a u lt
, an d a tt e mp te d

s e xu a l b a tt e r

y

. U n d e r D ixo n , th e f

ir s t i n qu ir y is “ w h e th e r

the movement or c onfinement wa s bey ond that nece ssary to c onsummate the [accompa ny ing c rime].” I d. a t 5 3 5 ( c it in gA n th o n y , 8 1 7 S. W. 2 d a t 3 0 6 )

. T h e s e c o n d

in qu ir y is “ w h e th e r

th e a d ditional movement or c onfinem en t : (1 ) preve nted the victim from summoning he lp; (2) lessene d the defe ndant’s risk of de tection; or (3 ) cr ea t ed a significa nt dang er or

incre ased the victim’s risk of harm.” I d. 2

Howeve r, in State v. Ralph, 6 S.W .3d 251 (Tenn. 1999) , our supre m e co u rt addressed a situat i o n wh er e a defe ndant was c onvicted of bur g lary and thef t of the same a

utomobile. That defe ndant ar g ued that the Anthony analy sis should apply

to his case b ec ause the entry into the

a uto mob ile wa s me re ly an e sse nti a l and inc ide nta l ste p in the the ft of the c ar a nd no t si g nif

ic a nt, in and of itself, to warra

nt an independent prosecution when he was also convicted of theft. The c ourt noted that “[u]nl ike the kidnapping offense at issue in Anthony
, the offe nses of burg lary and thef t-12-

are define d narr owly b y

statute and c lear ly

require proof of

differ ent eleme nts. Moreover , unlike Anthony , not ever

y theft of a vehicle inc ludes as a prac tical matter burg lary of that vehicle.” I d. at 2 5 5

. T h e c o u rt n o te d th a t it h a d n o t a p p li e d th e A n th o n y an a ly s is o u ts id e o f th e k id n a p p in g c o n te xt and declined t o extend its application to separ ate convictions of burglar y and theft. I d. at 256-57. I n light of Ralph, this court ha s also declined to e x tend the Anthony analy sis be y ond the kidnapping

c o n t e x t

. S e e , e

. g

. , S t a t e v

. C o w an , 4 6 S

. W

. 3 d 2 2 7 , 2 3 4

- 3 5 ( T e n n

. C r i m

. A p p

. 2 0 0 0 ) ; S t a t e v

. F l o yd Perrow, N o. M2003-00319-CCA-R3-CD, 2004 WL 193059, at *10-11 (Tenn. Crim. App. J an. 28, 2004); State v. Reg inol L . Wa te r s , N o. M2001-02682-CCA-R3-CD, 2003 WL213777, at *14 (Te nn. Crim. App. J an. 30, 2003), pe rm. to appea l denied (Te nn. J une 2, 2003).

We likewise dec line to extend the Anthony analy sis to the offenses at hand. Second deg ree
mur de r i s “ [a] k

no wi ng kil lin g of ano the r. ” Te nn . Code Ann. § 39- 13 -2 10 (a )( 1) (2 00 6) . D ome sti c assault occ urs when a

person intentionally , knowing ly , or re cklessly cause s bodily injury to a per son

w h o i s t h a tp e r s o n ’ s f

a m i l y o r h o u s e h o l d

m e mb e r

. Id

. § 3 9

- 1 3

- 1 1 1 ( b ) ; s e e i d

. § 3 9

- 1 3

- 1 0 1 ( a )

. In this case, the defe ndant was capa ble of be ating the victim with a cane without strang ling he r, just as he wa s c a pa ble of str ang lin g the vic timwi tho ut b e a tin g he r w itha c ane . In a dd iti on , e a c h o ff e ns e require d proof o f d i ff

er en t elements. Sec ond deg ree murder r equire d that the def endant kill the victim; wher eas, domestic assault required a domestic relationship betwee n the defendant a nd the victim. Moreover , even if we we re to a

pply the Antho n y , as m odified by Dix on, inquiry , the defe ndant would still not be entitled to re lief bec ause be ating the victim was beyond that nece ssary to kill her by strang ulation ( the main cause of death), and be ating the victim cer tainly would have lessened he r ability

to summon help. W e conc lude there was no due proce ss violation in t his case.

Turning to the d ef

en d ant’s double jeopardy conce rn, the Double J eopar dy Clause of the United States Constit ution states that no person shall “be subject fo r t he same offe nse to be twice put in jeopardy

of life or

limb [

. ]” U.S. Cons t. amend. V. Similarly , article I , section 10 of the Te nn e sse e Con sti tut ion

pr ov ide s “ [t]hat no pe rs on sh a ll, fo r t

he same of

fe nc e , b e tw ic e pu t in jeopar dy of life or limb.” I n State v. Denton, 938 S.W .2d 373, 381 (Tenn. 1996), our supre me cour t established the method f

or dete rmining w het her two of fense s were the same f

or double jeopa

rdy purposes. The first step is to deter mine, as direc ted in Bloc kburg er v. U nited States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932), whe ther e ach statutory provision require s proof of a n additional fac t which the othe r d o es not. Denton, 938 S.W.2d at 381. The sec ond step is to analy ze the actua l evidenc e used to prove eac h o ff en s e. I d. Third, consider whether there wer e multiple victims or dis c re te a c ts. I d. F ourt

h, e xami ne the purp os e s of the re sp e c tiv e statut e s. I d. Th e c ourt mus t a lso consider e ach f

actor in relation to the others. I d.

L ooking at the statutory provisions, second deg ree murder r equire s that the defe ndant kill the victim, and domestic assault re quires that the victim a nd the defe ndant have a domestic re lationship. There fore , eac h provision r equire s proof of a n additional fac t not required by the other. The second ste p, loo kin g a t t he evi den ce us ed to pr ov e e a c h o ff e ns e , d oe s n ot l e nd

a c le ar o utc ome . T he re is evidenc e that blunt forc e tra uma to the hea d contributed to the vic tim ’s de a th, bu t the re c or d r e fl e c ts that the S tate relied on the ac t of strangulation to support the murder c harg e and stra ng ulation was the ma in c a

us e of de a th. Th ir d, the re wa s only on e e nc ounte r b e tw e e n th e de fe nd ant a nd the vic tim
,-13-

but arguably

discrete acts. B y

th e defe ndant’s own testimony , he beat the victim with a cane and only strang led her

once the y

wer e on the g round. Four th, the purpose of both statutes appea rs to be the pre vention of har

m to o ther pe rsons. Considering these fa ctors, we conclude that the dual convictions do not violate the def endant’ s protection ag ainst double jeopar dy in this case.

V. Cum ulative Error

The de fenda

nt argues t hat he is entitled to relief ba sed on cumulative e rror , which depr ived him of his due proce ss rig hts to a fair tria l. Discerningno err or at trial, we respe ctfully disag ree

.

VI . Ot he r Iss ue

We note that in the statement of issues in the defe ndant’s brief, he argues that the trial court

err ed “in admitting numerous photogr aphs of the decease d victim when [he] readily conce ded that he wa s responsible for

the victim’s death[.]” Howeve r, the defe ndant did not ther eaf ter mention or addre ss this i ssue in his brief a nd has thus waived r eview

. See Te nn. Ct. Crim . App. R. 10(b) (“ I ssu e s w hic h are no t supp or te d b y argume nt, c itatio n to a

uth or iti e s, or

a pp ro pr ia te re fe re nc e s to the re cord w ill be treate d as wa ived i n this court.” ). I n any event, we have r eviewe d the re cord a nd discern no e rror

in the trial court’ s admission of the photogr aphs.

The a dmissibi lity of photogr aphs g ener ally lies within the sound discretion of the tr ial court and will not be over

turned on a

ppeal a bsent a c lear

showing that the t rial court abused its discre tion. State v. Fa

ulkner, 154 S.W .3d 48, 67 (Tenn. 2005); State v. Ba nks, 564 S.W .2d 9 4 7 , 9 4 9 (Tenn. 19 78 ). “ Te nn e sse e c ourt s f oll owa po lic y of lib e ra lity in the a dmi ssi on of ph oto g ra ph s in b oth

c ivi l and cr iminal cases.” State v. Morris, 24 S.W .3d 788, 810 (Tenn. 2000). I n deter mining whe ther a photogr aph is admissible, the trial cour t mus t fi rst deter

mine whether

it is relevant to a matter

at iss ue in t he c a se . See Te nn . R. Evid . 401 ; Stat e v. Va nn , 9 76 S.W. 2d

93 , 1 02 (T e nn . 1 99 8) ; B a nk s, 56 4 S. W.2 d at 94 9. Th e c ourt mus t ne xt co ns ide r w he the r t he pr ob a tiv e va lue of

the ph oto g ra

phis “substantially

outweig hed by

the dang er of

unfair pr ejudice, c onfusion of the issues, or misleading the jury .” Te nn. R. Evid. 403.

The r e c ord shows that the c ourt went throug h eac h photogr aph and ma de finding s with reg ard to r eleva nce, probative value, and prejudicia l e ffe ct. On one photogr aph in particular , the cour t was

car eful to excise a g ruesome por tion of the photog raph, and the court disallowed photogr aphs that it found to be cumulative or ove rly prejudicia l. Moreove r, even thoug h the def endant a rg ues that he

conce ded he wa s re s p o n s ible for the vic tim’s death, in his statement to police he only admitted hitting the victim twice an d argue d the killing wa s in self-def ense. The ref

ore, ma ny of the photogr aphs we re pa

rticularly probative to c ontradict these asser tions. W hile so m e o f t he ph oto g ra ph s are natu ral ly di st ur

bin g , w e c ann ot c on c lud e that th e c ourt a bu se d it s d isc re tio n in deter mining that the probative value of showing t he various injuries inflicted upon the vi ctim and the manner

of death overc ame a

ny prejudicia l effe ct.-14- CO NC LU SION

B a se d o n th e fo re g oin g a

uth or iti e s and re a so nin g , we a ff ir m the jud g me nts of the tr ia l c ourt

.

___________________________________ AL AN E. GL ENN, JUDGE