### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs O ctober 28, 2003
STATE OF TENN ESSEE v. ALFRED EUGENE BRAD LEY
Direct Appeal from the Criminal Court for Hamilton County Nos. 234375, 233962, 234979 Rebecca Stern, Judge

No. E2002-02840-CCA-R3-CD February 5, 2004

The defenda

nt was co nvicted by a

Hamilton Co

unty Criminal Co

urt jury of four c ounts of

attempted first degree murder, Class A felonies; ag gravated arson, a Class A felony; and false imprisonmen

t, assault, and theft

under $500, all Class A misdemeanors. He was sentenced by the trial court to an effective sentence of twenty -two year s and six months in the Department of Correction. Following the denial of his motion for a new trial, the defendant filed a timely appeal to this court, raising the following issues: (1) whether the evidence was suffic ient to support his convictions for aggravated arson and attempted first degree murde r; (2) whether

the trial court er red in de nyi ng his mot

ion to suppress his statements to law enforcement officers; (3) whe ther the trial court erred

in allowing the State to call a rebuttal witness during the presentation of its case in chief; (4) whether the trial court properl y sentenced the de fendan t for his attempted first degree murder a nd aggravated ar

son convicti ons; a n d (5) whe ther the cumulativ e errors preven ted the de fendant

from rec eiving a

fair trial. Based on our review, we aff irm the j u dgments of the trial court, but remand for entry of a corrected judgment for the def endant’s assault conviction in Count 2 of Case No. 234375.
Tenn. R. App. P. 3 Appe al as of Right ; Judgme nt of the Cr iminal Co urt Affirm ed and Remande d for Entry o f Corrected Judgm ent

A LAN E. G LENN , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OSEPH M. T IPTON , J., joined.

Me la ni e R . S ni pe s, Ch at ta no og a, Te nn es se e, fo r t he ap pe ll an t, Al fr ed Eu ge ne Br ad le y.
Paul G. Summers , Attorney Genera l and Reporter; Ka

thy D. Asling er, Assis tant Attor ney Genera l; William H. Cox, III , District Attorney Genera l; and L ila J. Statom a

nd David W. Denny, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION

FACTS-2-

The convicti ons in this c ase stem f rom three separa te indictme nts issued by the Hamilton County Grand Jury

against the defendant, Alfred Eug ene Bradley , in which he was charged with the May 23, 2000, t

heft of property

from the d

uplex of his

former girlfriend, Audrey Thompson; the May 25, 2000, kidnapping and assault of Thompson; and the June 3, 2000, aggra vated ars on o f Thompson’s duplex and attempted first degree murder of Thompson’s three children and

her male fr ie nd , B le vi ns Es pe y. Audrey Thompson testified at trial as follows. In May 2000, she lived

in a duplex on Milne Street in Chattanooga with her threeyoung sons a nd the defendant, whom she had been dating for eight to nine months. Howeve r, she an d the def endant br oke up, a nd she ask

ed him to mov e out. OnMay 23, 2000, she telephone d the police from a friend’s residence a nd r eq uested that officers meet her at the duplex. The defendant was already there when the police arrived, and she a sked him inthe pres ence of

an offic er to ga

ther hisbelongings, return his key, and leave . After the defendant’s departure, she went

into the du

plex with the officer and discovered that the def endant had cut a hole inher waterbed and taken some of her property , including her children’s clothing and picture s from the wall. The officer filed charges aga

inst the defendant based on his theft of property . At a later point, the defendant returned to the duplex and took a bicy cle that belonged to her son. Thompson testified

that a day or two a

fter the defendant

moved out, he pulled up in his car beside her as she was a

rriving for her 11:00 p.m. t

o 7:00 a.m. work shift at Heritage Hosiery . The defendant got out of his car and said, “[B]itch, I ’mgoing to kill you. Why you take out a wa

rrant
on me[?]” When she told the defendant that she had not taken out a warrant against him, he told her to shut up, and they scuff led before he pushed her into his carand drove off. As he drove, the defendant told her that he loved her and wanted the chance to start

over in another city, but fe ared he would be c

harge d with

kidnapping. Because she was a fraid, she told the defendant that sheloved him, too, and was willing to go wherever he wanted. At one point, the defendant parked t he car i n order to tal k. T hey b ega n ar gui ng, and he c hok ed h er n eck and hi t h er i n t he f ace . La ter, th e defendant stopped for gasoline, and she gave him some cash and

accompanied

him into the service station to pay. Thompson testified

she ma naged to escape when the de fendant stopped on the side of the
ro adto repair the car’s headlights and ta ke a screwdriver from the trunk of the c ar, with which he threatened

to kill himself. She said she drove off while the defendant was outside the car, returned to Heritage Hosier

y, and immediately telephoned the police to report the kidnapping. Thompson conceded none of her coworkers saw her scuffle with the defendant and acknowledged she did not tell the service station attendant that she w as being kidnapped. She explained, however, that the defendant had accompanied her into the service station and wa rned her not t o say any

thing to the attendant. Thompson testified that

the defendant telephoned her over twenty times on the night of

the fire, with his last call coming sometime after midnight . The def

endant c ried, told her he loved her, and demande d to know if

she had someone wit

h her at t he house . She told hi

m it was none of his business, and

he repli ed, “[I ]f I e

ver find out y ou’ve be en with somebody , bitch, I ’m going to kill-3-

you.” Thompson said she awoke sometime after 4:00 a.m. and decided to drive to a nearby

Texaco station to bu y ci ga re tt es . H er fr ie nd , B le vi ns Es pe y, was in the duplex when she left, along with her three young sons. She re turned approximately fiftee n minutes later to find her children o utsid e crying and the house on fire. Thompson acknowledged she did not see the defendant when she left for the store. Latiki Pankey, Thompson’s next-door neig hbor at the time of the fire, confirmed that her duplex sust ained water d amage from Thompson’s waterbed on the day the defendant moved out of Thompson’s duplex. She said she was later sitting on the front porch of theduplex when she saw the defenda

nt take a bicy cle fro m Thompson’ s duplex and load it into

a v an . A cc or di ng to Pa nk ey, the defendant

had a conversation with her at that time in which he threatened Thompson’s c hildren, say ing “the kids on the

track, t he train come, ba m, they’re

dead.” Pankey testified that the duplex fire occurred approximately one week later.

Detective Beth Stafford of the East Ridge Police Department testified she investigated the May 25, 2000, kidnapping and took a stateme nt from the

victim. B ased on that statement, an a rrest warrant was issued for the defendant, which was outstanding at the time the defendant was arr ested for arson. Thompson’s oldest son, fifteen-ye ar-old Aubrey Johnson, testified he w as t hirteen at the time of the fire and had stay

ed up late t

hat nigh t t o talk on the telephone with a girl. Their telephone service included call waiting, and the defendant ca lled “a numerous amount of times,” w anting t

o speak with Johnson’s mother, during Johnson’s conversationwith his friend. After his mother left the house, Johnson took

his one-yea

r-old brother into his bedroom to sleep with him, shut and locked his door , and

doze d off. Ab out fiv e minutes later, he was awakened by the sound of running and
someone trying to open

his bedroom door. When he re alized the house wa s on fire , he got his little brother and exited the house. He did not see the defendant that nig ht. Waylon McKinne y, t he owner of the dup lex, testif

ied he we nt to check his property

early on the morning

of June 3 af

ter his ma intenanc e employ

ee infor med him of t

he fire . It w as still

dark as he drove to the duplex, and he inadvertently took a wrong tur

n, mistake nl y dr iv in g d ow n C oo le y, whichwas one street ov er from M ilne. The re, he sa w an Afr ican-American

man ly ing fac edown in the road on top of

a b ic ycl e a nd a p ud dl e o f b lo od ne ar by. After c alling 9 -1-1, Mc Kinney drove to his duplex, where he informed an officer at the sce ne about the manin the road. McKinney testified that his insurance company declared the duplex a total loss as a result of the fire.

Blevins Espey testified he spe nt the night of the fire with Thompson, whom he had been dating at that time for about two weeks, and her three childre n at Thompson’s duplex on Milne Street. At some p oint that evening, he and Thompson went into her bedroom and fe ll asleep. However, at 2:30 or 3:00 a. m., Thompson awoke a nd decide d to leave

the house

to buy cigar ettes. Four or five mi nutes af ter her departu re, Espe y he ard a win

dow cra ck in the b edroom, turned

to look, and saw that a “gas bottle” had hit the floor and set the be droom on fire. As he leftthe bedr oom, Espey heard a second window shatter in the children’s be droom and saw a second fire. H e the n-4-

grabbed the children

and ran out of the house. Espey acknowledged he had bee n convicted of theft of property a

nd two counts of robbery in 1994.
Troy Alton testified he was an officer with the East Ridge Police Department in

May 2000 and responded to the report

of Thompson’s kidnapping. He did not remember if he had taken any photographs of the victim’s injuries; however, he had listed on his report that

there was an injured person involved. Alton acknowledged theonly informat ion he had

receiv ed about t

he crime came from the victim and that, to his knowledge, there were no othe r witnesses to the crime. Anthony Simon testified he was drivi ng home from a la te night cookout sometime between 4:30 and 5:00 a.m. on June 3, 2000, when he passed a clean-shaven, African-American man wearing
a dark shirt, who was slowly pushing a bicycle down either Orchard Knob or Roanoke. He and the
manmade eye

contact as he passed, and

Simon notic ed the ma

n’s fac ial feat

ures. When Simon c ame to the scene of the f

ire, he r eported the man to

Captain Jacks, the f

ire investigator at the scene. Simon testifie d that Capt ain Jacks la

ter aske d him to go

to the hosp ital, whe

re he pos itively identified the defendant as the man he ha d seen wi ththe bicycle. Simon acknow ledged, however, that he di d not mention any thing ab out a bicy

cle whe n he firs t spoke wit

h Captain Ja

cks. Phillip Woodall, a supervisor at Her ita ge Hosi ery , testifie d he reme mbered a n occasi on in whichThompson h ad shown u p late to w ork, visib ly s haking and askin g to use the telep hone to ca

ll the police. Thompson told him t hat she had been kidnapped by her boyfr iend and driven toward Cle veland, but had managed to drive away when her boyfriend got out of the c ar. Woodal l acknowledged

that many people wor

ked the third shift, and he did not notice any bruises on Thompson.

Officer Jacque Wea

ry of the Ch attan ooga Police Department testified that the defendant called the police department on May 23, 2000, to report that

Thompson had left her children alone and that he wanted to file neglect char ges against her. Upon

inve stig ating

at the Milne Stree t dupl ex, however, he determined that the child in question, who was nine , was old enough to be left alone. Moreover, the de fendan t was l ivin g w ith Thompso n at the time and was supposed to have been caring for the child. Thompson arrived home as he was investigating the defendant’s complaint and “wanted [the defendant] gone.” He accompanied the defendant inside as he retr ieved his belong ings, while Thompson waited outside. When the de fendant left, he gave Officer Wear y a key that did not fit the duplex’s door. Officer Weary then accompanied

Thompson in side, and

Thompson to ld him that the defendant had cut her waterbe d and taken some of her property . As a result, Officer Weary took out warrants against the defendant for vandalism and theft.

Officer Weary testified he ne

xt went to the Milne Street residence on Ju ne 3, 2000 , in response to the report of the fire. At abou t 6:00 a.m., h e received a report of a ma n down on Roanoke Street, which was close to Milne. It was still dark at the time, however, a nd he and a fellow officer were unable to find any

one when they

searched that location. Sometime around 7:00 a.m., they received a second report

of a man d

own on Cool ey

Street, which was perpendicular to Roanoke. Uponinvestigating, they

found the defendant ly

ing facedown in a pool of blood and entangled in a-5-

BMX bicycle. The

defendant smelled strongly of alcohol and gasoline or kerosene a nd had his eyes closed. He opened his ey

es when they shook

him and began asking him what had happene d, but he did not reply to any

of Officer Weary ’s questions.

Officer Weary testified that Of

ficer Fugh arrived soon ther eafter and asked the defenda

nt if he had hurt h

imself in the fire . The def

endant “ opened h

is ey es, he took a deep

breath a nd said yes,” at the same time giving a half nod. Office r Weary late

r heard Captain Jacks ask t he de fendant

a similar question a

nd saw the

defenda nt agai n nod y es. However, when Captain Jacks retrieved a tape record er and asked the defendant a second time, the def endant did not respond. Officer Weary test ified there wa s a large pool of blood near the bicy cle, other pools of blood nearby , and blood droplets leading from the scene. He said they “traced the blood droplets from the street on Cooley back down Roanoke across a y ard where the church is over onto Willow Street. And it stopped at Willow Street. And Willow is perpendicular to Milne.”

Chatt anooga Poli ce Offi cer And re Fugh testified that the defendant was “all balled up on the bicycle” with alarge pool of blood ne arby . He said they were ini tially unable to get any response fromthe defendant, but

he eventually “ came to a little bit before the ambulance” arrived. When they asked him his name, the

defenda nt first mu

mbled “Al fred” a

nd then, in

response to a reque st for his last name, “Bradley .” Officer Fugh then a sked the defendant if he had set the house on fire, to which he replied, “[Y]eah,” before passing out ag ain. However, when thesame question was later asked of him when a tape recorder was pre sent, the defendant said nothing. Officer F ugh said he smelled
a lcohol and gasoline on the defendant’s person a nd saw a large ga sh on the inside of h is forearm

. He acknowledged the defenda nt was “kind of dazed” during his conversation with him and describe d his appearance as follows: “The whole time he was like mumbling a little bit. He would say something and he wo

uld be out. And we a sked him about the fire and he said y eah and he went

out again.” Officer

Fugh testified the defendant beg an regaining consciousness af ter he was plac ed in the ambulance.

SeanSlaughte

r, a par amedic w

ith the Ha

milton Count

y Emergen

cy Medical Service s, testified that he a nd his par tner, EMT

Mike Johnston, received

three separate calls on the morning of June 3, 2000 , direct

ing them to three diffe rent locations where a man had been re ported down. The first two calls were cancelled before they

arrived due to the police officers’ failure to locate a subject at those scenes. On their third call, they w ere directed to Cooley Street, where they found the defendant

facedown in a large pool of blood beside a bicycle

. A second pool of blood was ten feet down the sidewalk, with yet a nother pool of blood ten to twenty fe et beyond that. Slaug hter testified he asked the defendant what had happene d to him, and the defendant replied that he had cut his arm on some glass. The only injuries he could f ind on the defendant “were severa l lacerations of vary ing sizes and depth

on the rig ht arm, extending

from the e lbow down

to the han d[,]” the worst of which was a wou

nd i n the bend of his elbow which had severed a vein a nd was causing the defendant to lose large amounts of blood. Based on the defe ndant’s injury and

the pattern of blood at the scene, Slau ghter t heori zed t he fol lowi ng:-6- [W]hat appeared to have happened wa s he was losing blood at a rate suchthat it wou

ld get to a certa in poin t and he wou ld pass out. As
soon as he was lay

ing [sic] down[,] his blood pressur e would ge t to
a point again whe re he could get up and would go a gain. Just an educated guess, where

he would get

back on the bicy

cle and s tart to peddle again his heart would start to pump a little faster, have more blood flowing through his veins and hewould lose more blood, which would cause him to pass out. Slaughter testified he gave Ca

ptain Jacks permission to speak to the defendant in the back of the ambulance while he a nd Johnston w ere still

working on the def

endant a t the sce ne. He sa id Captain Jacks aske d the def

endant if he had c ut his hand

throwing a gaso line bombthrou gh the window, and

the defendant “shook his head yes.” Howe

ver, when Captain Jacks brought out a tape recorder and asked if he could record the de fendant stati ng he had hurt himself putting his hand through a window, the defendant said, “[N]o, I did not say that, man.” Slaughter testifie d the def

endant’ s injury

was cons istent with

some one ha ving cu

t himself
on glass. He said the defendant was we aring a pair of shorts and a t-shirt . He did not smell any gasoline on the defendant, but did smell alcohol on his breath. The defendant was “lethargic” when Slaughter arrived, rather than

drifting in and out of consciousness. However, he was coherent prior to Captain Jac

ks’s ques tioning a

nd was ab le to provide Slaughter with his name, date of birth, and medical history. Captain Randy Jacks of the Chattanooga Fire Department, who was accepted as an expert inthe area of fire investigation, testified the Milne Stree t duplex fire was an arson. He said the initial callon the fire went out at 4:48 a.m., and he was dispatched to investiga te after the firefi ghters arrived at the scene. He was collecting evide nce at the scene of

the fire at 5:50 a.m., when he was notified that the defendant had been found on Cooley Street. B y the time he arr ived there, at approxima

tely 6:00 a.m., the defendant had been loaded into an ambulance . Captain Jacks testified the paramedics gave him permission to talk to the defendant, and he stepped into the ambulance and asked the defe ndant how

he had c ut himself

. The def endant sa id nothing

at first, but when Ca

ptain Jacks asked

if he had cut his ar m on glas s from the

house fire, he nodded y

es. Captain Jacks then stepped outof the ambulance, retrieved his tape rec order, and went back into the ambulance to ask the defendant the question again. However, when the de fendant saw the tape recorder , his eyes “bugged,” and he sa

id, “I didn’t say

that man.” Captain Jacks testified the fire had two points of origin: one in the children’s bedroom and
one in Ms. Thompson’s bedroom. He said he found a stro ng odor of gasoline in the children’s bedroom, a window t

hat had be en broke

n from the

outside, p ieces of

glass on the floor

that appeared to have bloo d on them, s mall spotsof blood on the wall outside the window and on a window screen lying beside the window, bright re d bl ood on pieces of glass ly ing on the ground beneath the window, and a burn

pattern consistent with a flammable liquid having been thrown agains t the wall

. He said he found the second point of origin benea th a window in Thompson’s bedroom, where he-7-

again detected the odor of gasoline, indicating that it was “an area where an a ccelerant was poured.” There was blood

on the g round be neath thi s window a s well. Ca ptain Jack s testifie d he sent the samples of blood and

other evidence he collected at the sce ne, along with the defendant’s clothing and a sample of the defendant’s blood, to the Tennessee B ureau of I nvesti gation ( “TBI ”) Crime Laboratory

in Nashville for analy sis.

Oncross-e

xamination, Captain Jac

ks testifi ed that, based on his experience, “a fire like that when something is thrown through a window is usually a Molotov cocktail.” He conceded, however, that he did not find a Molotov cocktail in the house, and, to his knowledge, the d efendant di d not have any burns. On re direct, he testified that it was possible the fire had been started by someone breaking a window, pouring an acceler ant inside the window, and igniting the accelerant. He said he had never personally

investigated an arson in which the arsonist rece ived any burns.

Tara Barker, a special ag ent forensic scientist with the TBI , testified her analy sis revealed the presence of a “g asoline r

ange product”

in a sample of fire debris from the children’s bedroom, in two samples of fire debris from the back bedroom, and on the clothing of the de fendant . On cros sexamination, she ackn

owledg ed th at a “gasoline range produc t” includes ordinary

automotive gasoline.

Michael Tu rbe ville, a f

orensic scientist in the DNA

serolog y un it of the T BI C rime Labora tory in Nashville, testified he was provided with several samples to analy ze in connection withthe c ase. His results were as follows: the glass outside the children’ s window tested presumptively positive for blood, but he was unable to determine if it was human blood; a second glass sample recovered from the scene contained human blood, but “no DNA profile was obtaine d due to an insufficient amount or degra ded DNA s ample”; g

rass found outside Thompson’s bedroom window tested po sitive for human bloo d, but ag ain, no DN A profile was obta

inable du e to “insufficient

or degraded sample”; and fina lly, reddish-brown

stains found on a

metal window fra

me were possibly blood, but

he was unable to determine if they were human blood. Turbeville testified that heat is one of the worst enemies of DNA.

Dr. David Leonard Ciraulo, a tra uma critical care surgeon a t Erlanger Medi cal C enter, testified the defendant’s main

injury was a tra nsection of the ra dial arte ry , which wa s repair

ed with surger y. T he injury was cons istent with

a cut fr om glass but could have been caused by

any sharp object. The defendant’s blood-alcohol level was .17%, and he also tested positive for cocaine. Nonethe less, the defendant remained either a 14 or a 15 on the “Gla sgow Coma Scale” d uring hi s time inthe trauma unit, meaning that he was “awa ke, alert and oriented

times three.” However, Dr. Ciraulo acknowledged t

hat the defe

ndant’s m edical r

ecords i ndicate d he was t

oo inebri ated to provide an accurate history to the pl astic surgeon. He further ac knowledged that the defendant’s medical record s showed, in addition to the injur

y to his right arm, an abrasion to theleg, lacerations of the left arm, and a “mark” on the left ha nd.

The defendant elected not to testify , and rested his case without the presentation of any proof

. After deliberating, the jury

found the defendant guilty of all the indicted charges, with the exception-8-

of kidnap ping, for which it

found him

guilty of the lesse

r-included

offense of false imprisonme

nt. Fo llowing a sentencing hearing, the trial court sentenced the defendant as a Ra nge I, standa

rd offender to twenty-one

years f or each of the attempted first degr ee murder convictions; as a violent offender to twenty-two y

ears at 85% release eligibility for the aggrava

ted arson conviction; and as
a Ran ge I, standar

d offend er to six months each for the false imprisonment, assault, and theft under $500 convictions. The trial court ordered the defendant’s six-month sentence for theft under $500 to be served consecutively to his twenty-two-y

ear sentence for

agg ravated arson, for an effe ctive sentence of twenty

-two year s, six months in the Department of Correction.

ANALYSIS I. Sufficiency of the Evidence

The defenda

nt raises as his fir st issu e whet her the e vidence was suff icient to s upport his convicti ons. Alth ough he does not make it clear, he appears to challeng e only the sufficie ncy of the evidence in support of his aggravated arson an d attempte d first

degree murder convictions, arg uing that the circumstantial evidence linking him to the arson was insufficient to exclude eve ry other reasonable theory

or hypothesis except that of his guilt of the c rimes.

When the suff

iciency of the convicting

evidenc e is c hallenged on appeal, the releva nt question of the reviewing court is “whether, after viewing theevidenc e in the lig ht most favorable to the pro se cution, anyrationa l trier of fact co uld have f

ound the e ssential e lements of the crime beyond a reasonable doubt.” Jackson v. V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 ( 1979); see also State v. Evans , 838 S.W.2d 185, 1 90-92 (T enn. 1992 ); State v. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13(e) (“Find ings of guilt incriminal actions whether by the trial court or jury

shall be s et aside

if the evidence is insufficient to suppo rt the findi ngs by the t rier o f fact o f gu ilt bey ond a reasonable doubt.”). All questions involving the cre dibility

of witnesses, the weight and value to be g iven the evidence, and all factual issues are resolved by

the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987)

. “A guil ty verdict by the jury, approve d by the trial judge , accredits the testimony of the witnesses for the St

ate and r esolves a ll conflicts in

favor of the theory

of the State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). A jury convicti on remove s the pre sumption of innocenc e with whicha defen

dant is init

ially cloaked and repl aces it w

ith one of guilt, so that on a

ppeal, a convicted defendant has the burden

of demonstrating that the evidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

The sa me standard of review is applicable to convictions based upon dire ct evidenc e , circumstantial evidence, or a combination of direct and circ umstantial evidence. See State v. N esbit , 978 S.W.2d 872, 898 (Tenn. 1998). Ho we ve r, if a c on vi ct io n i s b as ed en ti re ly on c ircumstantial evidence, the facts must be “‘so clearly interwoven and

connected that the finger of guilt is pointed unerringly

at the Defendant and the Defenda nt alone.’” State v. Re id , 91 S.W.3d 247, 277 (Tenn. 2002) (quoting State v. Smi th , 868 S.W.2d 561, 569 (Tenn. 1993)). The weight of circumstantial evidence is for the jury

to determine. State v. Coury , 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985).-9-

Further, whether all other reasonable theories hav e b ee n e xc lu de d b y th e e vi de nc e i s p ri ma ri ly a question of fact for the jury

. Pruitt v. Sta te , 460 S.W.2d 385, 391 (Tenn. Crim. App. 1970).

The defendant argues the circ umstantial evidence was insuf ficient t o sustain the jury ’s guilty verdict s because “there were no e yewitnesses to the cr

ime or any ty

pe of physical

evidence collected at the scene of the fire linking the Appellant.” I n particular, the defenda

nt points ou

t that the St

ate
was unable to establish thro ugh DNA ana lysis the source of the blood f ound at the scene of the crime. The State responds that the proof at trial was sufficient for a rational jury to conclude be

yond a reasonable doubt that it was the defendant who set the f ire. We agree with the State.

The proof in t

his case , viewed

in the lig

ht most favorable t

o the State , is suffic ie nt to establish the defendant’s identity as the perpetr ator and to exclude

every other re asonable

hyp othesis except his guilt of the offenses. The evidence at tr ial showed that the defendant was angr y at Thompson for endi

ng their relation ship andjealous at the thought of her with another man. Approxima

tely one week before the fire, the def endant threatened Thompson’s children in a conversation

with Thompson’s next-door neighbor. At roughly the same period

of time, on May 25, 2000, the defendant forced Thompson in

to his car and

drove he r around agains t her will, at the sa

me time telling her that he loved her and wanted a chance to start over with her. On the evening before the fire, the defendant telephoned Thompson’s house over twe nty times and, in one of his conversations with her, threatened to kill her if he disco vered th at sh e was with another man. Approximat

ely five minutes after Thompson left the house, someone stand ing outsi de the hou se broke a window i

n Thompson ’s bedro om, wher e her ma le frien d was stay

ing, and a win do w in a second bedroom, where two of Thompson’s three children we re sleeping , and thre w or poured a gasoline range product inside, setting the house on fire. Broken glass and blood found at the scene suggested that the arsonist cut himself in the process of se tting the fire.

The def endant was found shortly after the fire ly

ing on a nearby

street with a severe ly cu t arm. A trail of blood led from the pools of blood where the defenda nt was found back

toward the
scene of the fire. The defendant told the paramedic who treated him that he had cut his arm on glass and twice an swered i n the affirmative when asked, first by a police officer and then by the fire investigator, if he had cut himself starting the fi re. Fin ally, a gas olin e range product was present on the defen dant’s c lothing. This evide nce, tak en toge ther, wa s suffici ent to poin t the fing er of g

uilt unerrin gly at the defendant as the perpetrat or of the crimes. In the f ace of such overwhelming evidence of his guilt, the State did not need to conclusi vely establish through DNA testing that the blood found at t

he scene of the cr ime matc hed th e defendant. We conclude, therefore , that the evidence was sufficient for the jury to find the defe ndant g uilty of agg ravate d arson a

nd four c ounts of attempted first degree murder b eyon d a reasonable doubt. Further, althoug h not specifically ra

ised by the defendant, we conclude tha t the evidence was also sufficient to support the defenda nt’s convicti ons for th eft unde r $500, fa lse impris onment, a

nd assaul t.-10- II. Motion to Suppress Defendant’s Statements

The defendant next contends the trial court erred i n deny ing his mo tion to suppress his statemen ts to Officer Fugh and Captain Jacks. The def endant moved to suppre ss his statements pretrial on the basis that neither Officer Fug h nor Capt ai n Jacks pro vided him w ith his Miranda warning or obtained his wa

iver of r ights be fore que stioning

him about his i

nvolveme nt in the fire. After ascertaining tha

t the d efendant had not been arrested or pla ced in handcuffs, the trial court denied the motion, finding that the defendant was not in custody at the time he was questioned, and thus, Miranda

did not apply.

Our supreme court has set forth the standard by whichan appellate court is to review a trial court’s ruling on a motion to

suppress :
Becau se issues of

whether a defen dant was pla ce d i nt o c us to dy, interrogated, or volunta

rily gave a confession are pr

imarily issues of fact, we r eview t hese factual determinations by the trial court according to the standard set

forth in State v. Odom , 928 S.W.2d 18 (Tenn. 1996). Under this standard, “a trial court’s finding s of fac t in
a suppression hearing will be upheld unles s the evidence preponderates otherwise.” Questions about witness credibility and “resolutionof conflicts in the evidence are matt ers entrusted to the trial judge,” and

the “testimony presente d at trial may be c onsidered by an appe ll ate court in deciding the propriety of the trial court’s ruling on a motion t o suppress.” Our review of a trial court’s applicationof lawto the facts, however, is conducted under a de novo standard of review.

State v. Walton , 41 S.W.3d 75 , 81 (Ten n.) (cita tions and f

ootnote omitted), cert. denied , 534 U.S. 948, 122 S. Ct. 341, 151 L. Ed. 2d 258 (2001).

Onappeal, the defe

ndant ass erts that he wa s in custod y w hen he wa s questioned beca use he
was a suspect and phy sically unable to leave the sce ne. He, theref

ore, ar gues tha t his state ments should have be en suppre sse d because he was not in a position, given his phy sical condition at the time, to knowing

ly a nd volunta

rily waive his right

to remain silent. The State responds by arguing that the trial court co rrectly

found tha

t the def endant w as not in c

ustody at the time

he gav e his statements, and thus, Miranda was not implicated. We agree with the State.

In Miranda v. Arizona , 384 U.S. 436, 471-75, 86 S. Ct. 1602, 1626-28, 1 6 L. Ed. 2d 694 (1966), the United States Supreme C ourt held that a de fendant ’s statements made during a custodial interrogation

are inadmissible at

trial unle ss the State

establishes that the defendant was informed of his righ t to remai n silent an d his right to counsel and that the defenda nt knowing

ly a nd volunta

rily waived those rights. The Court defined a “custodial interrog ation” as “questioninginitiated by law enforcement

officers after a person has be en taken into custody or otherwise deprived

of his freedom-11-

of action in any

significant way .” Id. , 384 U.S. at 444, 86 S. Ct. at 1612. Our supreme court has set forth a number of factors to consider in determining w hether a reasonable person w ould consider hims elf in custo dy, inclu ding t he fol lowi ng:

“[ T ]he time and location of the interrogation; the duration and
c haracter of the questioning; the officer’s tone of voice a nd general demeanor; the suspect’s method of transportation to the place of quest ioni ng; the number

of police officers present; any limitation on movement

or other form of restraint imposed on the suspect during the interrog

ati on; any interactions betw een the o fficer and the su spect, including the words spoken b y the office r to the suspect, and the suspect’s verbal or nonverbal responses; the extent to w hich th e suspect is confronted with the law enforcement officer’s suspicions of guilt or evidence of guilt; and finally, the extent to which the suspect is made a ware tha t he or she is free t o refra infrom answering questions or to end the interview at will.”

Walton , 41 S.W.3d at 82-83 (quot ing State v. Anderson , 937 S.W.2d 851, 855 (Tenn. 1996)). Our supreme court ha s furth er de fined an arrest in Tennessee as involving a n “actual restraint on the arrestee’s freedo m of mo vemen t und er legal autho rity of th e arres ting o ffic er.” State v. Crutcher , 989 S.W.2d 301-02 (Tenn. 1999).

We conclude that the e vidence in this case does not preponderate ag ainst the trial court’s finding t hat the defendant was not arrested or in custody when questioned by Of

ficer Fugh and Captain Jacks and that the require me nts of Miranda therefore did not apply . Although the law enforcement officers suspected the defendant of

setting the fire, the record establishes that he was notunder arrest or in handcuffsat the time he was questioned about his injuries. To be considered in custody for the purpose s of triggering the Miranda warning, the defendant must be either under arrest or depri ved of his freedo m of action in

a manner associated with a formal arrest. See Walton , 41 S.W.3d at 82 . “This Court has expanded this definition to mean‘under the totality of the circumst ances, [whether] a reasona b le person in the suspect’s position would consider himself or herself deprived of freedom

of movement to a degree

associated with a formal arrest.’” Id. (quoting Anderson , 937 S.W.2d at 855). Here, the defendant’s encounters with the law enforcement officers
were not voluntary, but

the offic ers wer

e not res ponsible for the d efenda nt’s inab ility

to phy sically avoid the confrontations. What weight, if any , the defendant’s statements carried was for the jury to decide, which heard evidence a bout the defendant’s condition at the time he made the statemen ts, as well a s the res

ults of his d

rug an d alcohol tests per formed u pon his adm

ission to the

hospital.
III. Rebuttal Witness Called During State’s Case in Chief

The defendant

next conte

nds the tr ial cour t committed

revers ible error by a

llowing t he State to call a rebuttal witness during the presentation of its case in chief. On

the morning of the second day of trial, the State informed the trial court that, based on the previous day’s cr

oss-examination of-12-

Tho mpson, it wished to present Thompson’s supervisor at Heritage Hosier y, Phillip Woo dall, t o rebut the sugge stion that T

hompson ha

d failed to immedia

tely report the kidnapp ing:
[PROSE CUTO R]: Judge, based on s ome q uestions that [defense counsel] asked yeste

rday, I have a witness from -- that was her supervisor at the hosiery

mill. You know her questions were, y ou went back in and sort of implying that she really didn’t go back in and tell somebody. I

t’s not a witness that’s been listed previously, but it’s to rebut what she said. Now, I could hold it for my rebuttal proof, but I think it’s proper at this point to go ahead a nd rebut.

Defens e couns el objec ted that, as a reb uttal witne ss, Woodall ’s testimo ny should prop erly
come after the defendant’s case. H ow ever, the trial court overruled the objection, ruling that the State would be allowed to present the witness after de fense c ounsel fi rst had a ch ance to t

alk with him to eliminate any

surprise that coul d be cre ated by

his testimo ny:

THE COURT: I

don’t see

it really makes an

y di f ferenc e. You kn o w, as long as y

ou have a chance to talk to him and it’s not like it’s a major

-- it’s a rebuttal type

witness. I don’t think

it really matters when . I

mean , it ca

me asa sur

prise to her [pro secu

tor] th at it was an issue, I g

uess. But I’ll let y

ou talk to him so it’s no surprise. [DEFENSE COUNSEL]: Thank y ou.

THE COURT: But

just to make it run smooth I’d rather it -- Idon’t like to have rebuttal stuff unless we have to after y our proof, you know, unless we ha

ve to.
The admission of rebuttal evidence lies within the sound discreti on of the t

rial cou rt, and th is court will not overturn that decision absent a clear showing of an abuse of discretion. State v. Kendricks , 947 S.W.2d 875, 884 (Tenn. Crim. App. 1996); State v. Braden , 867 S.W.2d 750, 760 (Tenn. Crim. App. 1993). “Any compe tent evidence which explains or directly applies to evide

nce introduced

by the acc

used is admissible in rebuttal.” State v. Yarbro , 618 S.W.2d 521, 525 (Tenn. Crim. App. 1981). The defendant arg ues on ap peal that Woodall was a material, rather than a rebutta l, witness whose testimony should have bee n excluded based on the State’s failure to provide his name pri or to tria

l. However, we f

ind no abu se of disc

retion by the trial court in a

llowing h is te st im on y. Defense counsel’s questions during cross-e xamination cast doubt upon T hompso n’s claim of having

im mediate ly reported the kidnapping and implied that she had fabricated the episode. The State

then cal led Woodal l to testify that Thompson appear ed upset when she arrived late to work, and she immediately infor med him of

the kidnapping. The trial cou rt allowe d defens e counsel an opp ortunit

y to speak with Woodall before his testimony , thereby e liminating any surprise

. Trial counse l was ab le to bring out on cross-examination that the only sour ce of Woodall’s knowl edge about the kidnapping was Thompson, and that she did not appear to have a ny i njuries.-13-

The defendant has not shown how he was prejudiced by the order in which the State was a llowed to call the witness. We conclude, therefore, that this issue is without merit.
IV. Sentencing

The defe ndan t next contends the trial court erred in sentencing by misapply

ing enhancement and mitigati ng factors. When an accused challenges the le ngth and manner of service of a sentence, it is the duty

of this co

urt to con duct a de novo review on the record with a presumption that “the determinations made by the c ourt from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the recor d that the trial court considered the sentencing princ iples and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting a de novo review of a sentence, this court must consider (a) any evidenc e received at the trial and/or sentencing hearing, ( b) the presentence report, (c) the principles of sentenci ng, (d) the arguments of counsel relative to sentenc ing altern atives, ( e) the nature and characte ristics of the offense, (f) any mitigating or enhancement factor s, (g) any

statements made by the a ccused in his own behalf, and (h) the accuse d’s potential
or lack of pot ent ial for r

ehabilita tion or tre atment. T enn. Code Ann. §§ 40 -35-103, -210; State v. Taylor , 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001) . The party c hallenging the sentences imposed by the trial court ha s the burd

en of est ablishing that the se

ntence i s errone ous. Tenn. Code Ann. § 40-35-40 1, Sentencing Com mission Cmts. ; Ashby , 823 S.W.2d at 169

. The defendant’s aggr

avated arson

and attempted first degree murder convictions are Class A felon ies. In i mpos ing a sentence for a Cla ss A felon y, t he trial c ourt is to st

art at the midpoint in the range, increase the sentence based on any a

pplicable enhancement factors, and then r educe the senten ce as appropriate based on any applicable mitigating factors. Tenn. Code Ann. § 40-35-210(c), (d), (e) (2003). The weight to be af forded an existing factor is left to the trial court’s discretionso long as it complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the re cord. Id. § 40-35-210, Sentencing Commission Cmts.; State v. Mo ss , 727 S.W.2d 2 29, 237 (T enn. 1986 ); see Ashby , 823 S.W.2d at 169.

The defendant argues that the trial court erroneously

applied enhancement factor (11), that he had no hesitation about committing a crime when the risk to h uman lif e was high, Tenn. Code Ann. § 40- 3 5-114(11) (2003), and enhancement factor (17), that the cr ime was committed under circumstances under which the potential for bodily injury

to a victim was great, id. § 40-35-114(17), to his aggravated

arson se ntence b ecause

the risk to human life and potential for bodily injury to a victim are both inherent

in the crime of aggrava

ted arson. The defendant further ar gues that the trial court erred by failing to apply his a

busive childhood as a factor in mitigation. See id. § 40-35- 113(13). The State argues that enhancement factors (11) and (17) were appropriate to enhance the defendant’s aggravated ar son sentence based on evidence of the multiple victims who were present inthe home at the time the fire was set, and the trial court properly

declined to give the defendant’s abusive childhood any we ight as a mitigating factor.-14-

At t he d efendant’s November 4, 2002, sentencing hearing, Fire I

nvestigator Randy

Jacks testified that there were four individuals, Thompson’s male friend and her three children, sleeping inthe duplex at the time

the fire was set. H e said tha

t, based on his exper

ience, a ll four ind ividuals
were at a substantial risk of harm from the fire and that all four, as we ll as the individual who resided in the adjoining duplex, could possibly have bee n killed.

Three of th e d ef en da nt ’s si st er s, Ol iv ia Br ad le y, Valerie Bradley, and Mary Horner, testified in the defendant’s behalf. All three said that they loved their brother and described him as a good person. Olivia B radley

testifie d that the

defenda nt was ha rdworkin g, ge nerous, a nd frien dly and that he loved children. She said she considered him a good brother and had supported him throughout the trial and sentencing hearing. V alerie Bradley also testified that

the defendant was hardworking and good with children. She said that sh e l ov ed hi m, an d h er ch il dr en mi ss ed th ei r u nc le . F in al ly, Mary Horner testified that when she and the defenda ntwere children, their father, who claimed that the defendant was not his son, kept the defendant locked in a small pantry for days a t a time. Horner said that s he and her si blin gs had to “sneak” the defendant food by throwing “candy

and chips and whatever” from the outside through a small, high window into the pantry. Horne

r testifie d that the ir mother was blind, and their father had only one leg and walked

with the a

id of a stic

k. She said

that their father beat their mother wi th th e stick and also beat the defendant with the same stick. She testified that, in spite of his background, the defendant was the only one of the ten

childre n in the family who attended college. She said the defenda ntalway s helped p eople an

d chara cterized him as a good person.

Inaddition, defense

counsel su bmitted as mitigation evidence a number of certifica tes the defendant had earned in drug, alcohol, and a nger man agem ent cour ses durin g the co urse of h is incarceration.

The trial cou

rt found n o enhanc ement fa

ctors ap plicable to the the ft, false imprisonment, and assault conviction s and sentenced the defendant to six months for each of those convictions. The trial court applied enhancement factor (10) , the defen dant posse ssed or e mploy ed a fir earm, explosive device or other deadly weapon in the commission of the offense, Tenn. Code Ann. § 40- 35-114(10) (2003), to the attempte d first de gree m urder c onviction s and incr eased hi s sentence one year from the presumptive midpoint sentence of twenty years f or t hose convictions. As for the aggravated

arson conviction, the trial court applied enhancement fa ctors (4), the offense involved
more than one victim, id. § 40-35-114(4), and (7), there was a subs tanti al amo unt o f prop erty damage sustained, id. § 40-35-114(7), but decline d to assig

n either of those factors much weight. The trial court found, however, that the defendant’s manner of committing the offense, by throwing Molotov cockta ils through

the bedr

oom window s of a hous e in which people w ere sle eping, ma d e enhance ment

factor s (11) an

d (17) ap plicable to the off

ense, an d that both

of these factor s wer e entitled to substantial weight. The trial court theref or e increased the defendant’s sente nce for aggravated ar

son from the presumptive midpoint of twenty y ears to twenty- two years.
The defendant challenges the trial cour t’s enhancement of his sentence for ag gravated arson, arguing that enhancement factors (11) and (17) should not have been

used to inc

rease h is sentence-15-

because both factors are inherent in the offense of ag gravated arson. However , in State v. Lewis , 44 S.W.3d 501, 507 (Tenn. 2001), our su preme c ourt h eld th at the high risk to human life enhancement fact or may appropr iately be applie d to a conv

iction for aggr avated a rson whe n there a re mu ltipl e victims involved. The cour t reason ed that be cause it

takes onl y a single individual in a structure to elevate arson to aggravated a

rson, evidence that multipl e victi ms were placed at risk shows “‘a culpabil ity

distinct f rom and appreciably

greater than that incident to the offense for which [the defenda nt] was convicted.’” Id. (quot ing State v. Jones , 883 S.W.2d 597, 603 (Tenn. 1994)). Here, there was proof that the duplex fire endange red multip le lives, i

ncluding not only the four occupa nts of Thompson’s duplex, but also the resident in the adjoining duplex.

This court has previously he ld thatthe potential for bodily injury enhancement factor is not appropr iate to enhanc e a se nte nce for aggr avated a rson bec ause a po tential f or bodily injury is inherent in the offense. See State v. Kerwin L. Walton , No.02C01-9512 -C R-003 72, 19 97 WL 576447, at *3 (Tenn. Crim. App. Sept. 17, 1997); State v. Robert Gene Malone , No. 03-C-01-9110- CR-00307, 1992 WL 62014, at *5 (Tenn. Crim. App. Mar. 31, 1992). Therefore, the trial court erre d inapplying e

nhancement factor (17) to the defenda nt’s sentence. However, although not considered by the trial court, there was ample evidence to support the a pplication of enhancement factor (5), a victim was particularly

vulnerable b ecause of age or physical or mental disability, for both the aggravated

arson an d attempte d fir st degree m urder convictions, due to the victims having been asleep a t the time the fire was set. See Lewis , 44 S.W.3d a t 506 (finding pa

rticular ly v ulnerab le enhancement

factor applicab le when arson was committed at 3:00 a.m., a time when residents of apartment building were sleeping)

. The trial court considered the evidence of the de fendant’s abusive childhood, his completion of anger manageme

nt and drug and alcohol classes, and his family ’s suppor

t as a “catchall” factor inmitigation, but determined that it w as entitled to little, if any, weig ht. With respect to the mitigati on eviden

ce, the t rial cou rt stated : Uponthe testimony befo re me, under the mitigating factor No. 13, the c a tchall, that he has received certifica tes for anger manage ment, discipleship classes, drug rehab ty pe classes, I

find that he apparently suf

fered some very

sad child abuse in this young age, that he currently ha s support fromhis sister s who obvio usly love him and that he ha s a limited , a minor mi sdemean or criminal history

in this case. H owever , totally , giving weig ht to all of those things, I don’t find that they outweig

h or mitigate or

back the sentence down
or should affect the prior

sentence. They

are not significant enough, don’t hold enough weight to change the sent ence down from the sentences given.

We find no error in

the trial court’s refusa l to give any weight inmitigation to the defendant’s history of having suffered an abusive c hildhood or, in light of

the appli cable e

nhance ment factors, the trial court’s enhancement of the defenda nt’s sentences for agg

ravated arson

and atte mpted fir st-16-

degreemurder b eyond the pr esumptive

midpoint in

the range. According ly, we aff irm the sentences imposed by

the trial court.

IV. Cumulative Errors

Fi na ll y, we find no merit to the defendant’s claim that cumulative errors deprived him of a fair trial.

CONCLUSION

Based on the foregoing authoritiesand rea soning, we affi rm the judg

ments of the tri al court

. However, because the defendant’s judgme n t form for assault in Count 2 of Case No. 234375
errone ously

lists his sentence as six years rather than six months, we remand for entry of a corrected judgment for that offense.

___________________________________ ALAN E. GL

ENN, JUDGE