IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 9, 2014

STATE OF TENNESSEE v. NATASHA MOSES BATES 

Appeal from the Criminal Court for Bradley County

No. 12-CR-276 Amy A. Reedy, Judge

No. E2014-00725-CCA-R3-CD - Filed April 7, 2015

The defendant, Natasha Moses Bates, was convicted of two counts of felony murder, two

counts of aggravated child neglect, and four counts of facilitation of the initiation of the

process of manufacturing methamphetamine. The murder charges resulted from the deaths

of her five- and three-year-old sons whose bodies were found in her front yard. She received

a life sentence for each of the felony murder convictions, a twenty-year sentence for each

of the aggravated child neglect convictions, and a three-year sentence for each of the drugrelated convictions. The trial court ordered that the two life sentences be served

consecutively and the two twenty-year sentences to be served consecutively as well, with

these two sets of sentences to be served concurrently with each other and with the drug

sentences. On appeal, the defendant argues that the evidence is insufficient to support the

convictions; that the court erred by not severing the drug-related offenses from the felony

murder and aggravated child neglect offenses; and that the court erred by ordering certain

of the sentences to be served consecutively. Following our review, we conclude that the trial

court erred in not severing the drug offenses, Counts 5-8, from Counts 1-4, alleging felony

murder and aggravated child neglect. Accordingly, we reverse the convictions for Counts

5-8 and remand for a new trial. We affirm the convictions and sentencing for Counts 1-4. 

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

in Part, Reversed and Remanded in Part

ALAN E. GLENN,J., delivered the opinion of the Court, in which THOMAS T. WOODALL, P.J.,

and TIMOTHY L. EASTER, J., joined.

Richard Hughes, Jr., District Public Defender, for the appellant, Natasha Moses Bates.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant

Attorney General; R. Steven Bebb, District Attorney General; and Stephen Hatchett,

Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

FACTS

This matter resulted from the deaths of the defendant’s sons, R.B., age 3, and L.B.,

age 5, and the discovery of evidence of the manufacture of methamphetamine at the

defendant’s residence.

The State’s first witness was Nicholas Glen Laney, who was employed by the Bradley

County EMS and said that, on June 28, 2012, he responded to a call to the residence of

Thomas Kile, the defendant’s father. He found one of the victims on the sidewalk in front

of the home and the other inside the front door of the residence, both unresponsive. The

victims’ clothes were soaked apparently with sweat; and R.B. had “warm, . . . pale . . . [a]nd

moist” skin, with blue lips and nail beds. No pulse was detected for R.B., but L.B. was still

breathing and had a pulse.

Dr. Jeffrey Lynn Miller testified that he was an emergency room physician at the

SkyRidge Emergency Room and was the Bradley County Medical Examiner. He described

the condition of R.B. when he arrived at the hospital:

He was obtunded, he was unresponsive, you know, as where we are

working on the child, you know, we are starting IV’s and we are doing

procedures to the child to try and determine his . . . condition. There was no

response to anything we did. He was completely unresponsive.

Dr. Miller said that the standard temperature is 98.6 degrees, but R.B.’s was 109.

Dr. Miller did not believe that R.B.’s playing outside could have caused a temperature

as high as R.B. had. Carol Hayes Mayo testified that she was on duty at the emergency

department at Children’s Hospital at Erlanger when L.B. was brought in and that his core

temperature was 104 degrees.

Travis Smith testified that he was a patrol sergeant with the Bradley County Sheriff’s

Office and, on June 28, 2012, responded to a call regarding L.B. and R.B. He said that the

EMS technicians already were at the scene and working on the two victims. One was in an

ambulance, and the other was being brought out of the house. Initially, he thought it was a

drowning call, but the defendant said the incident had occurred on Keith Valley Road. She

said she had not called 911 from that location because she did not have a cell phone and had

to go to her father’s house.

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Charles Dewayne Scogginstestified that he was a criminal investigator for the Bradley

County Sheriff’s Office and responded to the call at 2:44 p.m. to 851 Armstrong Road and

immediately went from there to 879 Keith Valley Road, where the defendant was living. At

that location, he examined the Slip and Slide and explained its condition:

What I noticed initially when I got there the slide appeared to be

relatively dry with the exception of two very small puddles, all of which had

dirt and bugs in it. The ground around the Slip and Slide was dry, there was

no wet grass anywhere that I could find, and over all in general the Slip and

Slide did not appear to have been used in the recent past.

He first spoke with the defendant at the SkyRidge Medical Center Emergency Room,

and she said the victims had been outside, playing on the Slip and Slide and when she

returned from the house, they were in the front yard and unresponsive. Because of the

“suspicious circumstance” of the incident, he asked, and the defendant consented, to having

a blood sample taken from her while still at the emergency room. The defendant returned

with him to her residence, and later they went together to the Bradley County Sheriff’s

Office. She said that she had gone inside her home, while the victims remained outside in

the yard, and when she returned twenty to twenty-five minutes later, she found them. She

said that she had fixed the victims eggs for breakfast, but Investigator Scoggins found no

evidence that eggs had been cooked that morning. Later, she said that she had been inside

for thirty to forty-five minutes. He asked her the whereabouts of her cell phone, and she

responded she thought it was in her car, which was then in the possession of the sheriff’s

department. He said that he examined her cell phone and found that it would “ring straight

through to the Bradley County 911 Center.” The defendant did not explain why her phone

had been found in the trunk of her car.

When Investigator Scogginstold the defendant of the autopsy findings,she responded

that the information she had previously given was accurate, although it was possible that the

victims had been under the front porch instead of in the yard. Later, she said she had found

the victims in her car:

When we were getting close to being finished she did finally admit that she in

fact had come out and found both children inside of her car, describing her

younger child [R.B.] to be in the front right passenger seat of the vehicle with

that seat laid completely back, and that her old[er] son [L.B.] was partially

hanging out of the right rear passenger door.

Two search warrants were executed at the defendant’s residence. The first, on July

3, 2012, was to conduct a temperature study to determine the maximum temperature in the

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defendant’s car, where she said she had found the children. The next search warrant,

executed “approximately two weeks later,” was to search for the manufacture of

methamphetamine. Regarding the temperature experiment, Investigator Scoggins said that

the temperature on June 28, 2012, was 101 degrees, and on July 3, when they conducted the

experiment, it was less than that. The car was parked in the same location as on June 28, and

the purpose of the experiment was to measure the outside temperature and that at different

locations in the car, using seven or eight thermometers. Every thirty minutes, each

thermometer was read for the temperature shown and was photographed. The conditions on

the day of the test were the same as on June 28, except for the lower outside temperature.

At 1:00 p.m. on the day of the test, the ambient air temperature inside the car was 129

degrees.

Investigator Scoggins testified that the defendant told him she had a date with Mike

Mauradian the night of June 27 and was with him from 4:30 or 5:30 p.m. until about 10:00

p.m., when she left to go home. However, after officers asked to search her cell phone, she

recalled that later she had gone to the residence of Preston Woods. Describing the layout of

the interior of the defendant’s vehicle, he said that the back passenger door “was obstructed

based on the front seat being leaned back very far and two car seats piled up right behind it,

you couldn’t get between the seat and the car seats. It would have been hard to get through

there.” He said that, of the four doors of the vehicle, “the only door that opened from the

inside was the right rear which was blocked by the two car seats.”

Melanie Carlisle testified that she was employed by the Tennessee Bureau of

Investigation (“TBI”) as a special agent forensic scientist in the field of toxicology and blood

alcohol. She said that her testing of the defendant’s blood showed “amphetamine at less than

.05 micrograms per milliliter, and methamphetamine at less than .05 micrograms per

milliliter.” She said that, following a methamphetamine “high,” a user would reach a “crash

stage” and become depressed and sleepy.

Monica Datz testified thatshe was a crime scene investigator and latent print examiner

with the Bradley County Sheriff’s Office. She examined the defendant’s vehicle and

described the condition of the doors:

The front driver door, the exterior handle was broken but the door can

be opened from the exterior by putting my hand in the hole and searching for

and pulling, and I actually had to have one of our garage employees show me

how to do it. I couldn’t get the door open myself but I was able to pull on a

mechanism inside there and open the door. And the interior handle on the

driver door is broken, but it can be opened by pulling forward on a little piece

that was still there, and I had to pull forward to open that.

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As for the front passenger door, she said that ‘the exterior handle is missing, there’s

a hole in this area. I pulled on a bar in the hole and it locked and unlocked all the doors, but

the door would not open for me.” She added that the interior handle of the front passenger

door was broken off as well, and she could not open this door from the inside. The exterior

handle of the back driver door worked “properly,” but the interior handle was missing and

she could not open the door from the inside. She said that the defendant’s cell phone was in

the trunk of the vehicle.

Jan Null testified that he was a meteorologist in Saratoga, California, and since 2001,

he had been studying when outside temperatures were between 72 and 96 degrees. He

described the effect of the sun’s heating the interior of a vehicle:

A car basically acts as a greenhouse. The sun’s energy comes in what is short

wave energy, very high energy. It doesn’t heat up the air very much but heats

up objects inside a vehicle. It’s not uncommon for seats and dashboards to be

200 degrees. That in turn gives off heat that warms the air inside of a car, the

same sort of radiant heat you would have from that . . . little glowing heater

you have under your desk for those cold window [sic] mornings. That’s

heating up the car. Well, a car is a closed area and so that heat continues to

rise, and it actually heats up very rapidly. In the first 10 minutes a car heats up

about 19 degrees above whatever the outside air temperature. After a half an

hour it’s 34 degrees above whatever the outside air temperature is, and in an

hour it’s 40 degrees plus above whatever the outside air temperature is.

Mr. Null added that, at about one hour, the interior temperature of a vehicle reached

a plateau of about 45 degrees more than the outside temperature. He had reviewed

temperature records, and the June 28 temperature at the Cleveland water treatment plant was

101 degrees. He explained how the interior temperature of a car would rise as the outside

became warmer:

It would have heated up to, let’s say what that 85 degree temperature, during

that first hour it would have gotten to 125 or so, and then gradually as the day

warmed up, as the day warmed from that 85 to 101 the temperature inside the

car, again that plateau would have been reached and it would have stayed up

at that range.

Mr. Null said leaving the windows of a vehicle partly open made little difference of

the interior vehicle: “It mattered very little as far as windows being cracked. I have looked

at a number of days where they were cracked and it made a difference of about two or three

degrees on the extreme end of the temperatures.”

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Dr. Steven Cogswell testified that he was the deputy chief medical examiner at the

Regional Forensic Center in Knoxville. He described the effect on the human body as its

temperature rises:

Well, at a 109 degrees he will be comatose and probably die. Above a

108 we start seeing brain damage, irreversible brain damage. Above 104 we

start seeing reversible kind of changes, the ones that I’ve already gone over.

But when you get to about, roughly a 105 or 106 or so coma starts setting in

because you are simply unable to maintain conscientiousness [sic]. Your brain

is not getting enough blood. What blood it is getting doesn’t have much

oxygen, you are not moving it very well, and basically your body begins this

process of shutting down. Ultimately that leads to death. At a 109 degree core

temperature though you would be expected to be in [a] coma if not death [sic]

by that point.

Sandra Gail Keith, the first witness for the defense, testified that she was the

defendant’s mother. She said that her father owned the residence where the defendant was

living. Keith said she was employed as a truck driver and had lived in the residence herself

from 2007 until May 2012. The defendant and her husband were living there during the

same period. She said that the two victims liked to get into the defendant’s car and “pretend

like they were driving or they would just get toys and get out there and just play inside the

car.”

Tracy Lynn Honey testified that she was the defendant’s aunt. She went to the

hospital soon after the victims had arrived there and the defendant was “pretty frantic,

screaming, crying.” She accompanied the defendant back to her trailer to meet with

Investigator Scoggins. Later, they both went to the sheriff’s department.

Wanda Faye Ghorely testified that she was the defendant’s grandmother. She said

the victims liked to play in cars by themselves. She said that she sold the car to the defendant

and that the two front doors could be opened from the inside with a hook, which the victims

knew how to do, as well as to unhook their seatbelts. The rear doors opened and closed

normally.

Thomas Michael Kile testified that he was the biological father of the defendant. He

said that, the evening before the deaths of the victims, the defendant had come by his

residence between 9:30 and 11:00 p.m., appearing “fine” and not under the influence of

drugs or alcohol. He described how she had come to his residence the following morning,

the day of the victims’ deaths:

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She come flying in my driveway, dust was boiling, she got out and

hollered “Help me.” She got one, if I can remember which one it was, but one

of the children out of the back of the car and I said something about calling

911, and her phone did not work. I don’t think she could do nothing but text

on it[.]

He said that a call could not be placed with the defendant’s phone, so he called 911

with his own. Paramedics arrived in ten to fifteen minutes. He was in “panic mode” at the

time and could not recall if the defendant told him what had happened to the victims.

The defendant testified that, prior to the deaths of the victims, she had been doing

part-time work for a cleaning company and grooming dogs at a Petco store. The father of

the victims “[r]arely” saw them and did not pay child support. She said that, at the time of

the victims’ deaths, she was not using methamphetamine “very often at all” and had last done

so two days before. The evening before the victims died, she had smoked marijuana. The

morning of the 28th, she had fixed eggs for the children’s breakfast. Then, she and the

victims went outside where she set up the Slip and Slide for them to play on, which they did.

Sometimes, they would get into her car when she was outside with them, but she did not like

their doing so and would spank them. Most of the time when they did so, they would leave

the car door open.

The defendant testified that the victims usually took naps between noon and 2:00 p.m,

but “[m]ost of the time they wouldn’t go to sleep.” While the victims were outside, she had

been checking on them through a window in the master bedroom. She said that she had been

cleaning her residence and “basically realized that I didn’t hear them and it had been a minute

since I hadn’t heard them and I went out to check on them.” She went outside and heard the

eldest victim. She then took both victims and put them in her car. She did not call 911 from

her residence, because her cell phone would send only text messages.

She said that, in the garage, she had kept a marijuana pipe and a methamphetamine

pipe. She denied knowledge of materials for making methamphetamine found in the

dumpster, or providing a place to “cook” it.

Following this testimony, the defense rested its case.

ANALYSIS

On appeal, the defendant argues that the evidence was insufficient to support the

convictions and that the trial court erred in refusing to sever the counts regarding the deaths

of the victims from those alleging the initiation of the manufacture of methamphetamine and

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in imposing consecutive sentences. We will consider these claims.

I. Sufficiency of the Evidence

The defendant was indicted as follows:

Count 1: June 28, 2012, first degree murder for the death of [L.B.], during the

commission of aggravated child neglect, in violation of Tennessee Code

Annotated section 39-13-202.

Count 2: June 28, 2012, aggravated child neglect for the death of [L.B.], a

child under the age of 8 years, in violation of Tennessee Code Annotated

section 39-15-402.

Count 3: June 28, 2012, first degree murder for the death of [R.B.], during the

commission of aggravated child neglect, in violation of Tennessee Code

Annotated section 39-13-202.

Count 4: June 28, 2012, aggravated child neglect for the death of [R.B.], a

child under the age of 8 years, in violation of Tennessee Code Annotated

section 39-15-402.

Counts 5-8: June 28, 2012, the defendant initiated a process to manufacture

methamphetamine, in violation of Tennessee Code Annotated section 39-17-

435.

Count 9: June 28, 2012, purchase of ingredients used to produce or

manufacture a Schedule II controlled substance, to wit: methamphetamine, in

violation of Tennessee Code Annotated section 39-17-408.

1

In assessing the defendant’s claim regarding the sufficiency of the evidence, we apply

the rule that where sufficiency of the convicting evidence is challenged, the relevant question

of the reviewing court is “whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.

R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall

be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt

beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State

The defendant was found not guilty of this offense.

1

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v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the

credibility of witnesses, the weight and value to be given 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 guilty verdict by the jury, approved by the trial judge, accredits the testimony of

the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State

v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this

rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

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 removes the presumption of

innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that

on appeal a convicted defendant has the burden of demonstrating that the evidence is

insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Aggravated child neglect, as alleged in Counts 3 and 4, occurs when a person

“knowingly, other than by accidental means, . . . neglects a child under eighteen (18) years

of age, so as to adversely affect the child’s health and welfare,” and serious bodily injury

results. See Tenn. Code Ann. §§ 39-15-401(a), -402(a)(1). “Serious bodily injury” is

defined as bodily injury involving: “(A) [a] substantial risk of death; (B) [p]rotracted

unconsciousness; (C) [e]xtreme physical pain; (D) [p]rotracted or obvious disfigurement; or

(E) [p]rotracted loss or substantial impairment of a function of a bodily member, organ or

mental faculty.” Id. § 39-11-106(34). To sustain the conviction for first degree felony

murder, the State had to prove beyond a reasonable doubt that the defendant killed the

victims “in the perpetration of or attempt to perpetrate any . . . aggravated child neglect.”

Tenn. Code Ann. § 39-13-202(a)(2).

The defendant also was convicted of four counts of facilitation of the initiation of the

process to manufacture methamphetamine. Tennessee Code Annotated section 39-17-435

provides in pertinent part that “[i]t is an offense for a person to knowingly initiate a process

intended to result in the manufacture of any amount of methamphetamine.” Tenn. Code Ann.

§ 39-17-435(a). The statute further provides that “‘initiates’ means to begin the extraction

of an immediate methamphetamine precursor from a commercial product, to begin the active

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modification of a commercial product for use in methamphetamine creation, or to heat or

combine any substance or substances that can be used in methamphetamine creation.” Id.

§ 39-17-435(c). A person facilitates a felony if, “knowing that another intends to commit a

specific felony, but without the intent required for criminal responsibility under §

39-11-402(2), the person knowingly furnishessubstantial assistance in the commission of the

felony.” Id. § 39-11-403(a).

We will review the testimony regarding these convictions.

Investigator Scoggins testified that the defendant changed her explanation several

times as to what the victims had been doing while outside the morning of their deaths.

Among other statements, she first said that they had been playing the yard but later said it

was “possible” they had been under the front porch. When told of the results of the autopsies

of the victims, she said the victims had been beside the motor vehicle but later admitted she

had found the younger victim, R.B., in the right front passenger seat of the vehicle and L.B.

“partially hanging out of the right rear passenger door.” The defendant and other witnesses,

as we have set out, testified that the victims liked to play in the car.

The State presented testimony that the defendant tested positive for methamphetamine

when she was tested shortly after the bodies of the victims had been discovered. This drug

makes the user sleepy. Additionally, the evidence showed that the victims liked to play in

the defendant’s car and that on the day of their deaths the temperature was over 100 degrees.

The State presented testimony that, because of the broken interior door handles, it was

difficult, if not impossible, to open the doors from the inside the car. Meteorologist Jan Null

testified that the temperature inside the vehicle would have been about 45 degrees higher

than the outside temperature, which was 101 degrees on the day of the victims’ deaths. Upon

being questioned about the deaths, the defendant gave conflicting statements as to how long

the victims had been unsupervised and where she had discovered their bodies. Instead of

immediately going to a neighbor’s to seek help, the defendant, instead, drove the victims to

her father’s house, delaying the arrival of emergency medical personnel. Medical experts

testified that the core temperature of the victims could not have been so high unless they had

been in the defendant’s car.

From all of this proof, a reasonable jury could have concluded that the defendant was

sleeping, as a result of her use of methamphetamine, while the victims were in the yard,

unsupervised, for an unknown period of time. The defendant knew that the victims liked to

play in the car, that the day was hot, and that the car doors could not be opened by the

children from the inside of the vehicle. Further, a reasonable jury could have concluded that,

to mask her responsibility, the defendant gave conflicting versions as to what had occurred

and how she had found the victims. Thus, the evidence is sufficient to sustain the

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defendant’s convictions for felony murder and aggravated child neglect.

As for the facilitation of the initiation of a process to manufacture methamphetamine

convictions, Investigator Scoggins testified that he found four plastic bottles on the property

where the defendant resided, which had been used in the “shaker” method of

methamphetamine manufacture. In one of the bags where a bottle was found, officers also

discovered the defendant’s checkbook and, in another bag containing a bottle, was a warrant

addressed to the defendant. Also recovered from the bags were a lithium battery, Coleman

fuel, and a pill wash, all of which are used in the manufacture of methamphetamine. From

this evidence, a reasonable jury could have concluded that the defendant had engaged in the

facilitation of the initiation of a process to manufacture methamphetamine.

II. Severance

The defendant contends that the trial court erred by not severing the counts of the

indictment alleging the drug offenses from those charging felony murder and the aggravated

child neglect offenses.

Tennessee Rule of Criminal Procedure 14(b)(1) provides that “[i]f two or more

offenses are joined or consolidated for trial pursuant to Rule 8(b), the defendant has the right

to a severance of the offenses unless the offenses are part of a common scheme or plan and

the evidence of one would be admissible in the trial of the others.”

Before a trial court may deny a severance request, it must hold a hearing on the motion

and conclude from the evidence and argument presented at the hearing that (1) the multiple

offenses constitute parts of a common scheme or plan; (2) evidence of one of the offenses

is relevant to some material issue in the trial of the other offenses; and (3) the probative value

of the evidence of the other offenses is not outweighed by the prejudicial effect that

admission of the evidence would have on the defendant.

There are three categories of common scheme or plan evidence: (1) offenses that

reveal a distinctive design or are so similar as to be considered “signature” crimes; (2)

offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses that are all

part of the same criminal transaction. State v. Shirley, 6 S.W.3d 243, 248 (Tenn. 1999)

(citing Neil P. Cohen et al., Tennessee Law of Evidence § 404.11, at 180 (3d ed. 1995)).

“Decisions concerning consolidation and severance of offenses pursuant to

[Tennessee] Rules of Criminal Procedure 8(b), 13 and 14(b)(1) will be reviewed for an abuse

of discretion.” State v. Denton, 149 S.W.3d 1, 12 (Tenn. 2004) (citations omitted). “An

abuse of discretion in this context implies that the trial court applied an incorrect legal

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standard or reached a decision against logic or reasoning which caused an injustice to the

complaining party.” Id.

Following a hearing on the defendant’s motion to sever, the trial court explained why

joinder of the counts was proper:

The Court makes the following findings of fact: the crime scene where

the Aggravated Child Neglect and Felony Murder occurred was a secluded

property on a hill 50 to 75 yards off the roadway with trees that conceal it. The

dumpster on the property was full and overflowing with garbage. The Court

finds the Defendant was the person staying/living on the property with the

victims and with access to the garage, dumpster and trailer. The Court finds

the Defendant’s mother was a truck driver and was gone for long periods of

time. The Defendant’s mother was the only other person, that proof was

clearly offered, had access to the dumpster, trailer or garage. The Defendant

tested positive for having methamphetamine in hersystem on the same day law

enforcement responded to the crime scene. The shake bottle

methamphetamine labs and pseudoephedrine pill packets were found at the

crime scene soon after the crime occurred and property of the defendant was

found in close proximity to the shake bottles. A photo of the victims was

found in a bag with one of the meth labs.

The Defendant seeks a severance under [R]ule 14 b 1.

The Court finds that the offenses were properly joined by the Grand

Jury as the offenses are all part of the same criminal transaction or episode and

that proof of each criminal charge would be proof on the other criminal

charges during a trial. The Court finds the offenses charged all occurred

within a relative close proximity of time and location. The Court finds clear

and convincing proof of the [i]nitiation and [p]romotion of methamphetamine

manufacture was being committed by the defendant at the time of the

Aggravated Child Neglect charge. The Court finds the probative value

outweighs the danger of unfair prejudice. The Court finds the

methamphetamine manufacture is relevant to credibility and motive. The

Motion to Sever is DENIED.

In resisting the defendant’s motion for severance, the State made several arguments.

The State noted that the defendant tested “positive for methamphetamine on the day the

children died” and asserted that the continuing plan of the defendant was “the production and

use of methamphetamine . . . and that plan continued up until these two children tragically

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died . . . as a result of neglect.” Further, the State argued that the drug charges were

“corroborative of the state’s proof regarding [the defendant’s] drug use.” Defense counsel

responded, in part, that the State was unable to prove “these bottles and these blister packs

that were found in the dumpster were in any way involved or resulted in [the defendant’s]

conduct resulting in aggravated abuse or neglect.”

As we have set out, the State’s proof was abundant that the defendant knew the

victims were outside unattended on a very hot day and that they liked to play in the car, the

doors of which could not be opened from the inside by children. At the time this was

occurring, the defendant had methamphetamine in her system, a drug which would make her

sleepy. She gave police officers conflicting and changing accounts as to how she found the

victims and the emergency actions she took after doing so. However, the State presented no

proof that the defendant was inattentive because, as the victims were trapped and dying, she

was facilitating to initiate a process to manufacture methamphetamine or purchasing

ingredients to do so. In fact, the defendant did not contest the fact that she had

methamphetamine in her system the day that the victims died.

In support of its argument that the trial court was correct in allowing the drug offenses

to be tried with the felony murder and aggravated child neglect offenses, the State relies on

State v. Danita Lanette Wilson and Tiffany Nicole Norman, No. M2008-02850-CCA-R3-CD,

2011 WL 6382550 (Tenn. Crim. App. Dec. 19, 2011), perm. app. denied (Tenn. Apr. 11,

2012), in which the defendants were tried on various child neglect and endangerment charges

involving young children as well as others charging drug offenses. The State’s proof in that

case showed that drug screens of the victims revealed, in varying combinations, ecstasy,

methamphetamines, and cocaine. Concluding that the trial court had ruled correctly that the

drug and neglect charges could be tried together, this court explained that “[t]he child neglect

charges directly relate to the ongoing drug activity at the [defendants’] residence and show

that the [d]efendants acted knowingly in exposing the children in the residence to drugs.”

Id. at *18.

However, in the present appeal, we disagree with the State’s arguments that joinder

was proper of the offenses regarding the deaths of the victims and those regarding drugs.

The State presented no proof that the defendant’s inattentiveness to the safety and welfare

of the victims and the manufacture of drugs were, together, parts of a continuing scheme or

plan. In fact, the execution of the search warrant, during which officers located the

methamphetamine evidence, was executed approximately two weeks after the deaths of the

victims. Further, the State’s witnesses were unable to say exactly when, in relation to the

deaths of the victims, the drug facilitation had occurred. Given the explosive nature of the

two sets of charges, deaths of young children and manufacture of illegal drugs, we conclude

that the joinder constituted reversible error. Accordingly, we reverse the convictions for the

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drug offenses, Counts 5 through 8 of the indictment, and remand these for a new trial. The

reversal of these counts does not affect the convictions for Counts 1 through 4, which we

affirm.

III. Sentencing

The defendant argues that the trial court erred in ordering that the sentences for the

two felony murder convictions be served consecutively. We will review this claim.

Reviewing the grounds for consecutive sentencing, the trial court found that such

sentencing was proper because the defendant was a dangerous offender:

Everybody in this case has testified and the letter from the paternal

grandmother all seems to lead to a conclusion that [the defendant] never had

an example of how to be a mother, and that was testimony from more than one

person in this case. There seems to be some criticism about that but I’m not

sure other people are responsible for what she did. When I get to the factor

under discretionary consecutive sentencing I do find that the defendant is a

dangerous offender whose behavior indicates little or no[] regard for human

life and no hesitation about committing a crime in which the risk to human life

is high. Her children were introduced into a horrible place and around horrible

goings on, and the jury found that she was a facilitator and so around horrible

activity. So I do find that the proof in this case was that the defendant is a

dangerous offender whose behavior indicates little or no regard for human life,

the human life of her two boys, and no hesitation about committing a crime in

which the risk to human life is high, and all three of the following factors

apply: the circumstances surrounding the commission of the offense are

aggravated, the confinement for an extended period of time is necessary to

protectsociety from the defendant’s unwillingnessto lead a productive life and

the defendant’s resort to criminal activity in furtherance of an anti-societal

lifestyle. There’s no doubt she was living an anti-societal lifestyle in the drug

activity, in this meth activity. She was leading an anti-societal [lifestyle] and

she took her children into that lifestyle with her. Most importantly I find that

the aggregate length of the sentence is reasonably relate[d] to the offense of

which the defendant stands convicted, and that is two murders. She is

convicted of two murders, she’s not convicted of one murder. She’s convicted

of two murders. So I find that that discretionary factor does apply and that it

relates to this defendant and I do sentence her to consecutive life sentences, all

other offenses to run concurrently or at the same time.

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The trial court may order multiple sentences to run consecutively if it finds by a

preponderance of evidence that one or more of the seven factors listed in Tennessee Code

Annotated section 40-35-115(b) apply, including that the defendant is a dangerous offender

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

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

court bases consecutive sentencing upon its classification of the defendant as a dangerous

offender, it must also find that an extended sentence was necessary to protect the public

against further criminal conduct by the defendant and that the consecutive sentences

reasonably relate to the severity of the offense committed. State v. Lane, 3 S.W.3d 456,

460-61 (Tenn. 1999); State v. Wilkerson, 905 S.W.2d 933, 937-38 (Tenn. 1995). As to

consecutive sentencing, our standard of review is abuse of discretion with a presumption of

reasonableness. State v. Pollard, 432 S.W.3d 851, 861-62 (Tenn. 2013).

In State v. Dorantes, 331 S.W.3d 370, 374-76 (Tenn. 2011), our supreme court

detailed the horrific injuriesto the victim, whose cause of death was battered child syndrome.

When his body was found in a public park in Nashville, the victim had “multiple injuries to

virtually every surface of [his] body,” including “serious burns to entire areas of his feet . .

. [and] extreme burns to the entire area of the buttocks, rear upper thighs, and genitals.” Id.

at 375. The State’s medical expert testified that the victim’s injuries were consistent with his

“having been intentionally forced into a liquid over 150 degrees for at least one second,”

causing burns so serious that it would have been painful to sit or walk, and the resulting

infection damaging the victim’s internal organs so seriously that they were “failing at the

time of his death.” Id. Additionally, the victim had puncture wounds throughout his body,

as well as blunt trauma injuries to the brain, skull, and hand. These injuries supported the

finding that the defendant had committed the offenses of aggravated child abuse and felony

murder by aggravated child abuse.

Because the defendant in the present appeal, at a minimum, demonstrated extreme

callousness toward the health and welfare of the victims, and the results were fatal, the trial

court, in our view, had a reasonable basis for imposing consecutive sentences.

CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the judgments for

Counts 1-4 and reverse and remand those for Counts 5-8.

_________________________________

ALAN E. GLENN, JUDGE

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