# FILED July 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE APRIL SESSION, 1998

STATE OF TE NNE SSE E, ) C.C.A. NO. 01C01-9706- CR-00229 ) Appellee, ) ) WILSON COUNTY V. ) ) ) HON. J IMMY C. MARTI N, JUD GE MEL ISSA J. P EWIT T, ) ) Appe llant. ) (Especia lly Aggravated Bu rglary)

FOR THE APPELLANT : FOR THE APPELLEE : B. K EI TH WI LLI AMS JOHN KNOX WALKUP TAYLOR, TA

YLOR, Attorney General& Reporter LANNOM & WILLIAMS 102 East Main Stre et ELLEN H. POLLACK Lebanon, TN 37087 Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 TOM P. THOMPSON District Attorn ey Ge neral 111 C herry Stre et Lebanon, TN 37087

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Mel issa J
. Pew itt, appe als as o f right fro m he r convic tion in the Crimina l Court of W ilson Co unty. Follow ing a jury trial, she was co nvicted of espe cially aggravated burglary . In her appeal, t he Defendant presents the fol lowing issues: 1) Whether the evidence was suffi cient to sustain a gui lty ve rdict on the charge of es pecially aggravate d burglary; 2) Whether the tri al cou rt erred in all owing the admissi on of photographs of the victi m’s injuries which unfairl y prejudi ced and inflamed the jury; 3) Whether the tri al court erred in all owing the jury to consider

a charge of an incidental crime i n violat ion of theDefendant’s due process rights; 4) Wh eth er the trial court erred in al lowing the jury to consider t he charge of aggravated ass ault in add ition to th e cha rge of e spec ially aggravated bur

glary; and 5) Wh ether the trial court e rred in not allow ing the jury fo reman to announce the jur

y’s ver dict as to the aggravated assault char ge. We affirm the ju dgme nt of the trial co urt.

Elizabe th Pewitt, the victim, is married to Dwayne Pewitt and they h ave three (3) children . In August 19 95, the vi ctim was separated from her husband and was livi ng in a trailer with her ch ildren. D avid P ewitt is th e victim ’s brother- in-law and was married to the De fendan t. In Octo ber 1 995, Da vid Pewitt cam e over to perform variousrepair tasksat the vict im’s trai ler. Duri ng this t ime, he was separated from the Defendant. Thi s contact bet ween David Pewitt

and the victim led to a rom antic involvement during whic h Pewitt moved i nto the tr ailer wi th t he victi m and her-3-

children. Pewitt stayed for approximatel y five(5) mon ths un til the victim aske d him to leave. P ewitt bega n living with the Defen dant ag ain at that tim e.

On March 11, 199 6, th e vic tim paged David Pewi tt on at l east two (2) occasions. The Defendant answered t hat page and instructed the vi ctim, “[ Y]ou had better leave us al one or you’l l regret everythi ng you done [si c].” While at a friend ’s house, the victim p aged P ewitt again around 5:00 p.m . a nd he r eturne d her c all. W hile the victi m was talking wi th Pewitt , she could hear the Defendant i n the background screaming at Pewitt to tell the victim wha t she [De fendan t] said. Pewitt did not tellthe vict im what the Defen dant sa id, but he d id agree to meet w ith her to talk. The v ict im retu rne d hom e around 7:30 p.m. and began putti ng her chil dren to bed.

The victi m was lying i n bed with her chi ld when she heard P ewitt’s car tur n into her driveway. She put on her robe a nd went to the door. As Pewitt wal ked up her steps, she askedhim if hewas alone and he repli ed that he was. She then asked him why he was driv ing as he appeared to be “pretty drun k.” Pewitt came inside and told herthat he was not alone, that the Defe ndan t and h er friend Cindy were o ut in the car and that

he was supposed to l ead the victim outs ide for an a mbus h. Pewitt stated that he coul d not do that to the victim a nd sh e locke d the d oor. T he victim gave P ewitt a letter sh e had w ritten to him and the y began to hug an d kiss.

The next thi ng the vict im can recal l is so meone banging on her front door. She u nloc ked it because s he did not want her door to be t

orn down. She saw the Defendant and Cindyoutside and askedthem to leave. The Defendant forced her way insideand was screaming at Pewi tt to tell the victi m “[I]t ’s over. ” The Defendant-4-

repea tedly stated, “It’s ove r, bitch. It’s over, d o you un dersta nd tha t.” The victim responded tha t Pew itt shou ld tellher if it was over, and Pewitt decl ined to say the relation ship w as ove r. The victim’s four (4) year old daughter was sleeping on t he couch, woke up and the n be gan to cry. The victi m took her into her bedroom and told her to stay th ere, that ev erything w as oka y. Wh en she came back into the li ving
roo m, the Defe ndant a nd Pe witt were standing t here, with Cindy standi ng just outside the door. Defendant jumped onto Pewi tt and hit hi m, causing him to fal l and breaka table. The victi m asked herto leave, but Defendant r esponded that she had better leave Pewit

t alon e. Cindy c ame inside slowly and stood besi de the Defen dant.
Cindy hit the victi m and then the Defendant began to h it h er. Both of them attempted to pull the vict im outside by her hair but

the victi m sat down. Cindy sai d, “Give me the knife, g ive me the knife, we’re going to cut thi s bitch’ s hair.” The Defendant agreed and handeda knife to Cindy. When they brought out the kni fe, Pewitt walked outsi de. The vict im screamed, begging the m to please leave and for Pewitt to help her. While thevi cti m had her hands up tr ying to pul l her hair

away from the m, they cut her hands. After

the vict im moved her hands, t hey cut her hair. Cindy said, “We ’re going to cut your p retty little legs up .” The Defendant repeated, “Yeah, we’re going to cut you up.” Ci ndy began to cut her while t he Defendant beat her.

Defendant began cutting her legs whil e Cindy then beat the vict im. The attack continued while thevicti m screamed for help. Pewitt stepped back insid e and pulled both women off of t he victi m, then said, “My God, wha t have you all don e to her.”-5-

The victi m asked him to take t he women and leave. Wh en Pe witt got u p, Cind y and the De fendan t both kicke d the victim as they w ere leavin g.

After the vict im heard thei r carleave, shewalked over to her neighbor’ s home, the Eady’s, and ask

ed for them to call 911. Eady got some towels forherlegs after he called 911, and they r eturned to her

home to check on her childre n. The victim
was bleed ing so badly that she ret urned outsidebecause it was cold and she was tryin g to stoptheble edi ng. The a mb ulan ce arrived and transported her to the Univers ity Medical Center in Leba non. She was in sur gery for five (5) hours and stayed in the hospital for t wo (2) days. After sheleft t he hospital , the vi ctim stayed with her mother for one (1) week. She was in a wheelchai r and had to betransfer red by others from herwheelchair to the bed. The victi m was unable to do anyt hing for herself, and herhusba nd cam e and h elped h er after she returned to her t rai ler . He stayed for three (3) or four (4) months. The victi m displayed her sca rs to the j ury.

J eff Eady, next doo r neighbor to the vict im, was in bed asl eep when he and his wife heard s omeo ne ban ging on their front do or. Eady went to t he door and saw the victim walking down t he porch and across t heir yar d. Eady opened the door and turned on the li ght and the vi ctim came back up the stairs. Eady could see that

the victim was bleeding, so he called 91 1 and asked for an ambul ance. The victim advised him who attacked her and Eady relayed t hat information to t he operator at 911. Eady noticed t hat she was losi ng a lot of blood so he gotsome towels. They walked back to her t railer to check on her ch ildren, then th ey wra pped towels around her legs. T he am bulanc e later arrived and tran sported the victim to the hosp ital.-6- AnthonyMurray, a sergea nt wit h the Wilson County Sheriff’s Depar tment, was working on March 11, 1996, when he received a call for a domestic ty pe situati on. He was given a description of the suspect’s car and h ow m any pe ople were in the
car. He procee ded dow n Coles Fe rr y Pike and met a vehicl e matching the descripti on. He turned around and pr oceeded after

the car. The car’s driver refus ed to stop u ntil Mur ray pa ssed the veh icle and stop ped in the middl e of the road a nd forced the car to stop. Cindy Mainer was dri ving the vehicle whi ch belonged to t he D efenda nt. When he got to the car and t he suspects exi ted, he saw blood on th e Defe ndan t’s hands when he put handcuf fs on her. All thr

ee (3) of t he suspects w ere intoxi cat ed, belli gerent and uncooperative. The Defendant cussed at Murray and then kicked the ba ck glas s out o f his patrol c ar with h er feet. H e did not find a k nife in their vehic le.
Vicky Taylor, sister to David Pewitt , had invited her brot her and the Defendant to stay in her h ome o n the eve ning prior to this attack. During that day, Taylor

was talkin g with the Defendant. The Defendant was angry at t he victi m because she had paged Pewitt on t hree (3) occasi ons earli er that day . Defendant told Taylor t hat “[she] ought t

o go ki ll Beth [the victim].” Pewitt w as in th e othe r room when this occurred. Pewitt and t he Defendan t left Taylor’s home fifteen (15) or t wenty (20) minutes later and both had been drinking.
Sergeant Jason Locke was working as a detective on the night of March 11, 1996. Lockedrove to t he lo cati on wher e thesuspe ct’ s veh icl e was stopp ed. He photographed the insi de of the vehi cle. Locke stat ed that all thr ee (3) su spects appeared to h ave been d rinking, so he allowe d som e time to e lapse prio r to conducting his interview s. During that t ime, Lock e went to the hospital and-7-

photographed the victi m’s injuries. He also p hotog raphe d the s cene at the vic tim’s residence. All thes e photos were exh ibited to the jury . When Locke returned to the jail where the suspe cts were hel d, he inte rviewed t he Defendant. The Defendant
was read he r constitution al rights an d signed a waiver o f t hose right s. After condu cting an in terview, Lo cke wro te the follow ing statem ent: I was at w ork at 12 o’clock no on Mo nday, M arch 11 th, 1996 when B eth Pewitt paged me on my bee pe r. She paged me two more ti mes later the same day. She was wanti ng to talk to Dav id, m y husb and. I to ld her she was fix ing to regr et ever ything sh e had ever

doneto me . On Monday night, Da vid, Cin dy and I were riding around drinking and I started thinki ng about it and got mad, and I to ld Dav id we w ould never be happ y again until I wh ipped her as s. W e drov e to Be th’s traile r in Norene and D avid we nt in fir st to g et her ou t so we coul d take her down the road an d not do it at her trailer. I walked arou nd an d saw David kiss her and put his arm around her and that’s when I w ent in and Cindy came in beh ind m e. I ki cked Beth in her chest, si de, arms and head. The kn ife belong ed to me. I don’t kno w where it is at now. Bo th Cindy and I c ut Beth ’s legs, han ds, and hair. I’m not totally sure if the knife we u sed wa s mine or som eone e lse’s. After he w rote the sta temen t, the Defe ndant re ad the sta temen t and sign ed it.

Defendant argues that the evidence is insufficient to su pport her convict ion for espe cially aggrava ted burg lary beca use th e victi m consented to the Defendant entering her home and the State failed to prove the requis ite intent of entr y into t he victim’s habitation. A person commits the of fense of especial ly aggravated burglary by entering a h abitati on, without the effective consent of t he property owner, wit h the intent to comm it a felony, and the victim su ffers serious bod ily injury. Tenn. Code Ann. §§ 39-14-4 02(a)(1) , -404(a).

When an accused chall enges the suff iciency of the convicti ng evidence, t he standard is

whether, af

ter revi ewing the evi dence in thelight most favorabl e to the prosecution , any rationaltrier of fact could have fou nd the essentialelements of t he-8-

crime b eyond a reason able do ubt. Jack son v. V irginia , 443 U.S. 307, 319 (1979). On appeal, the State is ent itled to t he strongest legit imate view of the evi dence and all inference s therefro m. State v. Cabbage , 571 S.W .2 d 832, 835 (Tenn. 197 8). Because a verdict

of guil t removes the pr esumption of innocence and r eplaces it with
a presumption of

guilt, the accused has the burden i n this cour t of il lustrat ing why the evidence is i nsufficien t to suppo rt the verdict re turned b y the trier of fac t. State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace , 493 S.W.2d 4 74, 476 (Tenn. 19 73).

Questions concerning t he credibi lity of the wit nesses, the wei ght and valu e to be given the ev idence, as wel l as allfac tual issues raised b y the evidence, a re resolved by the trier of fa ct, not this co urt. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm . to appeal denied , id . (Tenn. 1987). Nor may thi s c ourt reweigh or reevalu ate the ev idence
. Cabbage , 571 S.W .2d at 835
. A jury verd ict approved by the trial j udge accredits the State’ s witnesses andresolve s all conflicts in favor of the State. Grace , 493 S.W.2d at 476.

In the li ght most favor

able to th e State, t he evidence shows t hat the Defendant entered the victi m’s mobile home witho ut consentof the vi ctim in or der to cause t he victim seriou s bod ily injury. W hile the testi mony from the vi ctim makes it cl ear that the front door of h er h ome was unlocked, there is no requirem ent within th e statute thata defendant must enter the home wi thoutconsent thr ough a “locked”

door. The victim testified that s he gave no consent to the Defendant to enter, but that she asked Defendantto leave the propert y. The Defendant nevertheless barged into the victim’s home. We find there was suf ficien t proof f rom which a reasonabl e trier of-9-

fact could have found the elements of especi ally aggr avated burgla ry. This issue is without m erit.

Defendant argues that the adm ission of photographs of

the inj uries to t he victim were prejudi cial and i nflamed the j ury. Defendant further insists thathis error
was plain err

or as pu rsuant to Rule 52(b) of the Tennessee Rules of Criminal Procedure. These photographs showed t he blood and lacerati ons on the legs of t he vi cti m. Defenda nt contends that the victim’s display of the s cars on her leg were suf ficien t to prove “serious bodi ly inj ury” as an el ement of especial ly aggravat ed burglary, and tha t these photog raphs only serve d to inflame an d excite the jury.

The admissibil ity of

photographs i s left to the sound di scretion of the trial cou rt, and this court w ill not interfere w ith the tri al court’ s exercise of that dis cretion abs ent
a showin g of clear a buse. State v. Braden , 867 S.W.2d 750, 758 (Tenn. Cri m. App. 1993) ( citing State v. Banks , 564 S.W .2d 947 , 949 (T enn. 19 78)). To be admitted into evidence, a photograph must be r elevant to an issue that the jury wi ll deci de and the probative value of t he photo must outwei gh any prejudi cial effect that it may have upon the tri er offact. Brade n , 867 S.W.2d at 758. Si mply because a photogr aph vividly portrays

the de tails of a gruesome cri me or because the subj ect portr ayed could be described i n words does not render a relev ant photograph i nadmissible. Collins v. S tate , 506 S.W.2d 179, 185 (Tenn. Cr im. App. 1973) (citations om itted).

In the case sub judice , the trial court did notabus e its disc retion in admittin g t he photog raphs into evidenc e. In order to convict a defend ant of e spec iall y aggravated burgla ry, theState mu st p rove th at t he v ict im of t he offense suf fered-10-

“seriousbodily i njury. ” Tenn. Code Ann. § 39-14-404(a)(2). Even if t he visual demonstration of h er legs i n additi on to the photographs was cumulative, the relevance of the photogra phs to depict the serious nature of the v ictim’s b odily injuri es is not di minished. While such p hotos may be disturbi ng or even gru esom e to some jurors, that alon e is insuf ficien t to render

these otherwi se relevant photog raphs ina dmiss ible. Havin g found no error, th is issue is w ithout me rit.

The Defendant argues t hat she should not have been prosecuted for espe cially aggravated burglary as thi s act was m erely incide ntal to the commission of another felony, aggravated assa ult. In additio n, the Defendant asserts t hat the element of “serious bodily injury” in both the offenses o f aggra vated ass ault and espe cially aggravated bur glary cause t he consideration of b oth offe nses to be in
error and a violat ion of her ri ghts against double jeopar

dy. Simil arly, the Defendant concludes thatit was “pl ain error ” for t he jury foreman to be precl uded from reading the jury’s verd ict on t he charge of aggra vated assaul t after

findingher guilt

y of espec ially aggrava ted burg lary.

The elements of aggr avated assau lt are that a p erson c omm its the offe nse if she intenti onally or

knowingly causes seriousbodily injury to someone. Tenn. Code Ann. § 39-13 -102( a)(1)(A ). In orde r to com mit the offens e of es pecia lly aggravated burglary, a person must enter a buildi ng, not o pen to the publ ic and wit hout the
owne r’s cons ent, with the inte nt to co mm it a felon y and c ause “seriou s bod ily injury” to anothe r person . Tenn. C ode An n. §§ 39 -14-402 (a)(1), - 404(a ). While the jury
was charged on both of fenses upon consi deration of aggra vated assa ult as a lesser offense, the De fenda nt was convic ted of o nly one (1) offe nse o f espe cially aggravated burgla ry. The jury wa s spe cif ica lly instruc ted by th e trial co urt that if it-11-

found the Defend ant guilty of especially aggravated burglary, th en it was n ot to consider

any other of

fenses inc lu ded within the charge to t he jury. For these reasons, the Defendant’ s reliance upon State v. Anthony , 817 S.W.2d 299 (Tenn. 1991), and State v. Oller , 851 S.W.2d 841 (Tenn. Cri m. App. 1992) , is mis placed. In both Anthonyand Oller , the defendan ts were indicted and convictedof a minimum
o f tw o (2) offenses, whereas i n the case sub judice Defendant was only convicted of one (1 ) offense
.
Defendant further r elies upon t he section of Tennessee Code Annotated whic h statesthat “[a]cts whi ch constit ute an offense under this sect ion may be prosecuted underthis sect ion or

any other

applicabl e section, but not bot h.” Tenn. Code Ann. § 39-14 -404( d). Co urts ha ve inter preted this sta tute to m ean th at if t he serious bodily inju ry element used to establish the especial ly aggravated burglary offense is the same injur

y that i s an element of an accompany in g offense, the defendant may not be convicte d of both the es pecially aggravate d burglary and th e accompanying offense. See Oller , 851 S.W.2d at 843; State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). This does not apply to Defendant’s one convicti on in the case sub judice
. Finally, the De fenda nt argu es tha t the trial c ourt er red in not allowing the jury to anno unce the ver dict as to its de cisio n on t he aggravate d assault char ge. As aggravated assa ult was o nly to be consider ed by the jur

y if t he jury di d not findthe eleme nts of espe cially aggravated bur glary, then there was no error by t he foreman not reading the jury’ s verdict on the aggravated assault char ge. This issue has no merit.-12- The judgment of the t rial cour t is af firmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ L. T. LAFFERTY, Special Judge