IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 17, 2004 Session

STATE OF TENNESSEE v. MARGIE JEANETTE FARLEY

Direct Appeal from the Circuit Court for Warren County

No. F-8248 James L. Weatherford, Judge

No. M2003-02826-CCA-R3-CD - Filed February 16, 2005

The defendant was convicted by a Warren County jury of facilitation of first degree felony murder,

facilitation of especially aggravated robbery, and criminally negligent homicide, which the trial court

merged into the facilitation of felony murder conviction. The defendant was sentenced as a Range

I, standard offender to twenty-five years on the facilitation of felony murder conviction and twelve

years on the facilitation of especially aggravated robbery conviction, to be served consecutively, for

an effective sentence of thirty-seven years in the Department of Correction. On appeal, the defendant

raises the following issues: whether the evidence was sufficient to sustain her convictions and

whether the court erred by not instructing the jury as to accessory after the fact and in imposing

consecutive sentences. Following our review, we affirm the judgments of the trial court but remand

for entry of corrected judgments to reflect the correct offense date.

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

Remanded for Entry of Corrected Judgments

ALAN E. GLENN,J., delivered the opinion of the court, in which THOMAS T.WOODALL and ROBERT

W. WEDEMEYER, JJ., joined.

Robert S. Peters, Winchester, Tennessee, for the appellant, Margie Jeanette Farley.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney

General; Dale Potter, District Attorney General; and Larry Bryant, Assistant District Attorney

General, for the appellee, State of Tennessee. 

OPINION

FACTS

Late in the evening on May 4, 2000, the defendant, Margie Jeanette Farley, and a

codefendant, Braddie Eric Sullivan, went to the home of the victim, Louie B. Johnson, in Warren

County. There, Sullivan beat the victim to death with a tire tool belonging to the defendant and one
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of the codefendantstook the victim’s wallet from his pants. Sullivan and the defendant then fled to

Florida in the defendant’s vehicle. The defendant returned to Tennessee and was subsequently

questioned by law enforcement officials. She was arrested on May 13, 2000, and she and Sullivan

were charged by a Warren County Grand Jury in a three-count indictment with first degree felony

murder, especially aggravated robbery, and first degree premeditated murder. 

Proof at Trial

Testifying for the State, Wayne Millraney stated that he was at the victim’s home between

6:00 and 7:00 p.m. on Thursday, May 4, 2000, and the victim was present and in apparent good

health.

Mike McKinney testified that he went to the victim’s home around 4:45 p.m. on Friday, May

5, 2000, to look at some dog boxes for sale and discovered the victim’s body lying in the backyard.

McKinney then walked to the nearby Delores Market and asked someone to call 9-1-1. 

Warren County Sheriff’s Deputy Jim Shules testified that he was dispatched to the victim’s

residence at 4446 Old Smithville Road. Upon arrival, he discovered the victim lying “towards the

end of his driveway” and observed “marks in the driveway,” as if “[s]omething had dug it up,” as

well as bloodstains. He then notified investigators, who took over the crime scene. 

Herbert Rowland, the Chief Investigator for the Warren County Sheriff’s Department,

testified that he was dispatched to investigate the victim’s death. He discovered the victim’s boots

near the bottom of the back porch steps and the victim’s pants in the yard, both separate from the

victim’s body. The victim’s trailer was locked, and Rowland did not see any signs of a break-in.

About two days later, Rowland and other investigators walked Old Smithville Road and discovered

a tire iron “perceived to be the murder weapon.” About a mile from the victim’s trailer, they found

the victim’s wallet, which did not contain any money, and a bandana. They also found some of the

contents of the wallet strewn about the area.

As the investigators were trying to develop a suspect, the defendant’s name “came up,” so

Rowland interviewed her at the Sparta Police Department on May 11, 2000. This interview with the

defendant, who was not yet under arrest, was videotaped, and the videotape was played for the jury.

During the interview, the defendant stated that the victim was her “sugar daddy” and he was worth

more to her alive than dead. She said she was in Georgia and Florida with her friend, Sharon

Wilson, on the day of the murder. She also stated that the last time she saw the victim was around

Christmas of 1999, and the last time she spoke with him on the telephone was a week or two before

his death. Although the defendant gave other statements to police, this first one was the only one

that was videotaped. 

Investigator Jackie Matheney, Jr., of the Warren County Sheriff’s Department testified that

the tire tool was recovered near 4281 Old Smithville Road, approximately two-tenths of a mile from
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the victim’s trailer. The tire tool was collected and sent to the crime lab. The tire tool, wallet, and

bandana were all found “going back into town” from the victim’s trailer. 

Michael Turbeville, a forensic scientist in the Serology and DNA Unit of the Tennessee

Bureau of Investigation (“TBI”) Crime Laboratory in Nashville, testified that he was summoned to

Warren County to help process the murder scene. The victim, clothed in a shirt and underwear, was

found lying in the yard. His pants were located a few feet from his head, and his boots were found

approximately thirty to thirty-five feet away from his body. At least two tire track impressions and

one shoe track impression were made, but someone other than Turbeville analyzed those. Later,

Turbeville examined the defendant’s 1992 Buick Regal for blood and discovered that the carpet and

upholstery apparently had been cleaned with “some kind of cleaning agent or some kind of chemical

solvent,” which “could have potentially destroyed any blood evidence that was present.” He also

discovered the victim’s blood and hair on the tire tool submitted to the crime lab. No blood was

found on the victim’s wallet, personal papers, or the bandana. While taking inventory of the Buick

Regal, he noted that the jack and the tire tool were missing from the vehicle.

Bobby Phipps, a corrections officer with the Cumberland County Sheriff’s Department,

testified that the codefendant, Eric Sullivan, was released from the Cumberland County Jail on May

3, 2000, at 2:50 p.m., after the defendant posted his bond.

Mark Eller, an acquaintance of the defendant, testified that he saw the defendant and Sullivan

at Phillip Smith’s house around 8:30 or 9:00 p.m. on May 4, 2000. 

James Phillip Smith testified that the defendant and Sullivan came to his residence in Hickory

Valley at Sparta around 1:00 p.m. on May 4, 2000, and gave him about two grams of

methamphetamine to sell. Later that day, before dark, they returned to Smith’s trailer and retrieved

the methamphetamine, which Smith had been unable to sell. The defendant also took a shower at

Smith’s trailer. The defendant returned to Smith’s trailer on May 11 and asked Smith to “give an

alibi for her and [Sullivan].” Smith gave two statements to the police. In the first statement, on May

11, he provided an alibi; however, on May 12, he “went to the Sheriff’s Department and asked to talk

to the detectives” in order to “set the record straight.” He admitted that he was not truthful in the

first statement. When he saw the defendant on May 12, she had dyed her hair red. Smith said he,

Sullivan, and the defendant had all used methamphetamine in the past, but on May 4, Sullivan and

the defendant both appeared “pretty normal.”

Andreas “Andy” Allen testified that he dated the defendant when he was a teenager and that

they were “good friends.” He stated that he had read the defendant’s statements accusing him of the

murder, but he could not have done it because he was incarcerated in the Washington County Jail

on the day of the murder. The defendant wrote Allen a letter while he was in jail and asked him to

admit to committing the murder because “[Sullivan] threatened to kill her kid and kill her mama and

her family if she told anything on him.” He believed the defendant “was in fear of her life when she

wrote” the letter. On cross-examination, he stated that he flushed the letter from the defendant down

the toilet before anyone could read it. He also testified that Sullivan had a violent reputation and had
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“whipped five (5) deputies in Van Buren County out in the street.” He acknowledged that the

defendant had a history of violence and that she might commit a violent act if influenced by

someone. 

Melissa Knowles testified that she knew the defendant through school and “was married into

her family.” On May 4, 2000, the defendant came to visit Knowles because she was upset and “was

having trouble with her boyfriend.” About two days later, the defendant, accompanied by Sullivan,

came to Knowles’ house again to borrow some clothes because she was going on vacation to

Georgia. Sullivan waited in the defendant’s car while she borrowed the clothes, and the defendant

introduced Sullivan to Knowles, saying, “This is my new boyfriend Eric.” The defendant’s hair was

shorter than it was the last time Knowles saw her, and she had changed the color. After her vacation,

the defendant returned to Knowles’ home alone and said she had been fighting with Sullivan. The

defendant began crying and said, “I can’t talk to you about it. I just really can’t talk about it. . . .

Melissa, I don’t want to get you into nothing [sic].” She stated the defendant seemed “very scared”

of Sullivan and told her, “[I]t is bigger than what you think.” On redirect, Knowles refreshed her

memory with her statement to police and stated that the defendant actually borrowed clothes from

her on May 4, 2000. The defendant told her that the victim “was going to help her [and] give her

money to get back on her feet.” She acknowledged that the victim had wired $25 to her to give to

the defendant.

Bill Lewis, the defendant’s ex-boyfriend and father of her child, testified that in early May

2000, the defendant borrowed some money on a Tuesday for a bond for Eric Sullivan. The

defendant and Sullivan came to his house on Wednesday and stayed until about 11:00 p.m. He did

not see the defendant again until she returned a week later. At that time, the defendant’s hair was

short and she had dyed it a “burgundy red color.” The defendant called Lewis from Florida on a

Monday, and he told her that the Warren County Sheriff’s Department wanted to talk to him and that

she needed to return to Warren County and talk to them as well. He then wired her some money to

a grocery store in Winter Haven, Florida. She arrived back in Tennessee on a Wednesday morning

and told Lewis to “go see them [the police] first and see what they wanted.” At first, the defendant

told Lewis that “she didn’t do it,” and asked if the victim’s body was found near his trailer. Later,

she told Lewis that “[Sullivan] was going to protect her or something.” Lewis took the defendant

to talk to the police on Thursday; afterwards, she said she wanted to put four new tires on her car

because “her car was down at [the victim’s].” Lewis then had four new tires put on the car at a tire

shop. Although he paid the disposal fee for the old tires to the shop, he took the tires at the

defendant’s request and dumped them on the side of the Old City Dump Road. Lewis identified a

lug wrench in court, saying it looked like the one he had seen in the defendant’s car. He also recalled

the victim’s relationship with the defendant, saying he “figured that [the victim] was her sugar

daddy.” About five or six years before, the defendant “had a couple of friends named Angie and

John that talked about if [the victim] ever got robbed that they would have to hit him in the head to

rob him.” Lewis acknowledged that he was not truthful in his first statement to the police but said

he was truthful in his second statement. 
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Dr. John E. Gerber testified that he performed the autopsy on the victim’s body. He

determined that the cause of death was “multiple blunt force injuries to the head” and concluded that

it was a homicide. He described in detail the various lacerations, hemorrhages, and fractures on the

victim’s head and skull and stated that the wounds were consistent with having been caused by the

tire tool recovered in this case. He said the victim had no drugs in his system, and his blood-alcohol

content was .01% which was “a very small amount.”

Investigator Tommy Myers of the Warren County Sheriff’s Department reviewed the

defendant’s initial videotaped statement and re-interviewed her, along with Melissa Knowles, on

May 12, 2000. The defendant waived her Miranda rights and gave a handwritten statement to Myers.

He read the entire statement, in which the defendant admitted going to the victim’s house with Andy

Allen, whom she said killed the victim:

I Margie Farley am making this statement of my own free will

and no one has forced me to say anything in this statement.

On Thursday May 4, 2000 I was with a friend & we went to

Melissa’s house to pick up some clothes that I could wear that she no

longer wanted. I told her that I wanted to leave town for a while to

get my life together. We left there and went to Phillip Smith’s house

and I took a shower. We left there and I dropped my friend off and

found out that Andy Allen was looking for me, wanted to talk he said.

I went there, met him & we left to go riding around & he was low of

cash & so was I & I told him that I had a sugar daddy in

McMinniville [sic] that I could get some cash from. We arrived at

[the victim’s] at around 8:30 or 9:00 maybe later. I walked up &

knocked on the door and [the victim] came to the door & opened it,

he was drinking & he hugged me & said where have you been you

beautiful Bitch. He asked if I needed ciggarettes [sic] and I said

yes[.] He said do you want me to go with you to Delore’s Market to

get some cigarettes and I said no just give me some money because

Delore’s is closed and I will drive up to Exxon and get some. I knew

that Andy was in the car with me and I didn’t want [the victim] to see

him. [The victim] then asked if I wanted to ride to a bar and I said

yes get some shoes on & I will go out to the car & straighten it up &

move my clothes brush & hair spray out of the seat because I needed

to tell Andy what he wanted to do, so I walked to the car and told

Andy that he wanted to go to the bar but we would just tell [the

victim] that we were cousins or something and it would be alright.

Andy then said “Hell no” I will not watch that old Bastard put his

hands all over you. I said wait at the church for me and I will make

an excuse to leave early & he said he would so he got out of the car

like he was going to walk to the church. I went back in to the trailer
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and told [the victim] that I was ready & he said he was too so as we

started out the door he told me to go first because he always wanted

to make sure that the doors was locked. As we started to my car I was

about 5 feet ahead of him & the next thing I remember [the victim]

was yelling & I looked around & Andy was hitting him in the head

with something and he just kept hitting him. I was shocked, scared

& terrified of all that was happening & I was yelling stop it you’re

killing him. Andy then stopped and took the wallet out of his pants

([the victim’s])[.] He yelled let’s go, let’s go now so I panicked &

got in the car & started out to the roadway & from there Andy

disposed of the wallet & weapon. I then drove where I was told to

drive until he disposed of the clothes he was wearing & from there I

took him home & left for Florida.

The friend I spoke of that was with me earlier before at

Phillip’s was Erick Sulluvan [sic].

Myers and the other investigators “wanted to believe” what the defendant was telling them

and wanted to “give her the benefit of the doubt.” The defendant agreed to cooperate with the

investigators and wore a body wire in an effort to tape-record Andy Allen talking about the victim’s

death; however, after two or three attempts, they were unable to find Allen. After talking among

themselves and comparing notes, the investigators realized there were “some things in [the

defendant’s statement] that were not true.” Myers told the defendant they “believed that she wasn’t

being truthful” concerning who was with her at the victim’s trailer. The defendant then told the

investigators “that everything in the statement was true except for a few things. One, that Andy

Allen was not with her, but it was Eric Sullivan.” Additionally, she stated that “when [Sullivan] was

hitting [the victim] over the head that he told her to grab the wallet, which she did.” The defendant

said they drove toward McMinnville when they left the victim’s residence, and Sullivan threw the

tire tool and the victim’s wallet out the window. Sullivan also threw out his bandana because “he

thought it may have some of [the victim’s] blood on it.” At that time, the defendant also told them

about Bill Lewis buying new tires for her car because she “was afraid that [the police] would track

some tire prints to her car.” The investigators then questioned Lewis again, and he told them that

the first statement he had given was not true and that the defendant “had asked him to lie for her.”

Lewis took the investigators to where the old tires were dumped, and the investigators recovered the

four tires. Myers reviewed his notes and testified that the defendant told him that she and Sullivan

went to the victim’s trailer “because they needed some money to go to Georgia to sell dope that

[Sullivan] had with him.” In addition, the defendant “said that she had taken her car and cleaned the

carpet with brick acid to remove any blood stains.” These admissions were not part of the

defendant’s written statement because, as the investigators were attempting to get a corrected

statement from the defendant, “[s]he just became irate and cussed . . . and said she was not going to

sign anything.” The investigators arrested the defendant and began looking for Eric Sullivan.
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On cross-examination, Myers stated that he did not videotape any of his interviews with the

defendant. Even though there was videotaping equipment at the White County Jail where the

defendant was interviewed, Myers stated he had “never been trained” to videotape an interview, had

never videotaped an interview, and his department did not have the money for such equipment.

Myers stated he “just didn’t think about it.” On redirect, he recalled that the defendant, in her last

interview with him, stated that she kept the tire tool behind her seat in the car for protection. 

The defendant testified that she met the victim through mutual friends, Johnny and Angie

Nunley, and they had a “relationship” during those times when she and Bill Lewis were having

problems. She and the victim often “drank a lot” when they were together. Even when they were

not dating, they were friends and the victim helped the defendant financially. 

She said that Andy Allen was an ex-boyfriend whom she dated in 1986. She first met Eric

Sullivan at Allen’s trailer in Sparta in April 2000. Allen and the defendant were both using

methamphetamine at the time, and Sullivan was both a methamphetamine user and “cook.” When

she first met Sullivan, he and Allen, along with several other men, were cooking methamphetamine

at Allen’s trailer. She explained that methamphetamine is addictive and “keeps you awake . . .

causes you to be disillusional [sic] . . . makes you very paranoid and very jittery.” The defendant

started using methamphetamine about a month before she met Sullivan. The defendant had never

seen Sullivan show any violent tendencies before the victim’s murder. 

The defendant said that on the day of the murder, Sullivan had finished a batch of

methamphetamine, and they went to Phillip Smith’s house where Sullivan gave Smith “a couple of

grams or so” of methamphetamine. They returned later in the day, and after Sullivan discovered that

Smith did not have the money for the methamphetamine, he became “a little irate.” The defendant

had already asked to take a shower at Smith’s house and did so in order to “get awake” because she

had “been up for a couple of days.” She had called Melissa Knowles and asked her to bring some

clothes because it was her intention to spend the night with the victim in McMinnville. Sullivan

rode with the defendant to McMinnville because “[h]e had some friends down here in McMinnville

that he could stay with, and he said that he was going to Georgia” because his probation was about

to be violated for driving the defendant’s car on a revoked license. The defendant took Sullivan by

his friend’s house, but he did not stay because his friend was “probably doing a cook” and was being

watched by the police. They then went to the victim’s trailer. The victim knew that the defendant

was on her way to spend the night with him, and she denied that there was any discussion between

her and Sullivan about robbing the victim. The defendant’s mother and Bill Lewis also were aware

that she was going to see the victim. 

They arrived at the victim’s trailer around 10:30 or 11:00 p.m., and the defendant tried to get

Sullivan to go inside, but “[h]e was just all paranoid.” The defendant went to the back door and left

Sullivan in the passenger’s seat of the car. The tire tool was in the back floorboard because Allen

and Sullivan had changed the defendant’s tire a few days before. The victim answered the door in

his shirt and underwear and asked, “[W]here the hell have you been[,] you beautiful bitch?” She told

the victim that a friend was in the car, and the victim suggested they go to the Moose Lodge and get
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her some cigarettes and drop her friend off. She then went out to the car and told Sullivan that the

victim knew he was there and that he could go with them to the bar or they would give him a ride.

However, Sullivan said he did not want a ride but was going to walk to a nearby pay phone and call

a friend. The defendant went inside the victim’s trailer as Sullivan was getting out of the car. 

The defendant sat and drank most of a beer while the victim got dressed. As they were

leaving, the defendant waited on the porch while the victim locked the door. They “walked off the

steps together,” but the defendant then walked ahead of the victim some distance. She heard the

victim say “goddamn,” and thought he had fallen because he had a bad hip. However, when she

turned around, she saw the victim fighting with Sullivan and screamed for Sullivan to stop. She

testified, “[W]hen I got [Sullivan] to stop, I bent down to see if [the victim] was okay. I was asking

him if he was okay and he wasn’t talking. I could hear him gurgling.” Sullivan screamed for her

to grab the victim’s keys and wallet, but she refused. She pulled her own keys from her pocket and

went to her car. As she was about to drive away, Sullivan jumped in the car, yelling, “[D]rive the

fucking car, bitch. Drive the fucking car before I give you the same thing that I just gave him.” 

They stopped at a store, and the defendant called Bill Lewis who told her “just to calm down,

just calm down and listen to [Sullivan] and I will take care of things.” Sullivan threw the wallet and

tire tool onto the side of the road. The defendant and Sullivan drove to Georgia and then on to

Florida, and Sullivan told her that if she told anyone, he would kill her son and “cut him up and send

him to [her] in pieces.” When she returned to Tennessee, Lewis bought new tires for her car and

cleaned the interior. 

In her second statement, the defendant said Andy Allen was the murderer because “[the

investigators] kept telling me that they knew that it was [Allen] that had done it” and, if she did not

give them a written statement, “they couldn’t protect me or my kid.” She denied ever confessing to

taking the victim’s wallet but agreed she had taken steps to cover up the crime by changing her tires,

cleaning her car, and making false statements to police.

On cross-examination, she acknowledged that she had spent time in prison after pleading

guilty to aggravated kidnapping, which she had committed with her husband. She also stated that

Sullivan took between $700 and $900 from the victim’s wallet and that when she left the victim in

his yard near his steps, he was fully dressed. She could not explain how his boots or pants had come

off and said, “That has always been a mystery to me.” She said she had her hair cut and dyed in

Georgia the day after the murder, and Sullivan changed his appearance as well because “he was

afraid the police would be looking for us.” She also stated that Sullivan told her after the murder that

if she “wanted to know why he did it to call [her] boyfriend [Lewis].” 

Sentencing Hearing

The sole witness at the sentencing hearing was Donna Dunlap, the defendant’s probation

officer who prepared the presentence report. She testified concerning the defendant’s criminal

record, which included a pending assault on a police officer charge in Warren County and a violation
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of an order of protection in 2000. She also had an additional assault conviction and convictions for

aggravated kidnapping and three counts of forgery. Additionally, although the offense is not

identified in the presentence report, the defendant had a conviction in 1990 for firing a missile into

a dwelling. She also stated that the defendant was on parole three times but violated it each time.

While in prison, the defendant had obtained her G.E.D., and she told Dunlap that she had completed

“anger management and sex abuse and stress management and substance abuse programs.” The

defendant also told Dunlap that she began using alcohol and Valium when she was twelve and

started using cocaine at the age of fourteen, which she used three or four times a week. In addition,

she started using methamphetamine right before the victim’s murder and was using

methamphetamine at the time of the murder.

ANALYSIS

I. Sufficiency of the Evidence

The defendant argues that the evidence was insufficient to support either her conviction for

facilitation of felony murder or facilitation of especially aggravated robbery. The State disagrees.

In considering this issue, we apply the familiar 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (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 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
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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. See State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).

Facilitation of Felony Murder

The defendant’s argument essentially is that because she was not convicted of an offense

listed in Tennessee Code Annotated section 39-13-202, i.e., robbery or attempted robbery, then her

conviction for facilitation of felony murder cannot stand, and “facilitation [of especially aggravated

robbery] would not constitute an underlying felony necessary to establish the crime of felony

murder.” As we understand, the defendant argues that the guilty verdicts returned by the jury were

inconsistent in that in order to facilitate felony murder, she would also have to be found guilty of

either robbery or attempted robbery. 

Facilitation of felony murder requires proof that:

1. One of the felonies listed in Tenn. Code Ann. § 39-13-202(a)(2) or (3) was committed;

2. The victim was killed during the commission of that offense;

3. The defendant knew that another person intended to commit the underlying felony, but

he or she did not have the intent to promote or assist the commission of the offense or to benefit in

the proceeds or results of the offense; and

4. The defendant knowingly furnished substantial assistance to that person in the

commission of the underlying felony.

See State v. Ely, 48 S.W.3d 710, 719-20 (Tenn. 2001); Tenn. Code Ann. §§ 39-11-403(a), 39-13-

202(a)(2)-(3) (2003); see also State v. Pharez Price, No. M2002-01717-CCA-R3-CD, 2003 WL

1868653, at *8 (Tenn. Crim. App. Apr. 11, 2003), perm. to appeal denied (Tenn. Oct. 13, 2003);

State v. Marthias S. Phillips, No. M2000-02575-CCA-R3-CD, 2002 WL 31202125, at *5 (Tenn.

Crim. App. Sept. 27, 2002), perm. to appeal denied (Tenn. Jan. 27, 2003).

In the present appeal, especially aggravated robbery, rather than facilitation of especially

aggravated robbery, was the underlying felony supporting the facilitation of felony murder

conviction. The jury’s verdicts, finding the defendant guilty of facilitation of felony murder and

facilitation of especially aggravated robbery, obviously reflected its belief that Sullivan killed the

victim while committing an especially aggravated robberyand that Sullivan took the victim’s wallet.

Moreover, the verdicts reflect that the jury believed the defendant knew the robbery was going to

occur and furnished substantial assistance to Sullivan, who committed the underlying offenses of

especially aggravated robbery and felony murder. The two verdicts are entirely consistent. The

defendant did not strike the victim with the tire tool or rob him, nor did her conduct rise to the level

of criminal responsibility as set forth in Tennessee Code Annotated section 39-11-402. The jury
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rejected the crime charged, felony murder, in favor of the lesser-included offense, facilitation of

felony murder, which we have stated is both “a prerogative that the jury has under our system of

justice and a right to which an accused is entitled.” State v. Hicks, 835 S.W.2d 32, 36 (Tenn. Crim.

App. 1992). Accordingly, this issue is without merit.

Facilitation of Especially Aggravated Robbery

The defendant argues that the evidence was insufficient to support her conviction for

facilitation of especially aggravated robbery because the evidence at trial showed that “the property

that was taken from the person of the victim was not connected to the homicide” and that only a theft

occurred because the “taking was done after the death of the victim.” We will review these

arguments.

Robbery is the “intentional or knowing theft of property from the person of another by

violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2003). Especially

aggravated robbery is a robbery accomplished with a deadly weapon and where the victim suffers

serious bodily injury. Tenn. Code Ann. § 39-13-403(a) (2003). Facilitation, as previously discussed,

requires that a defendant, without intent to promote or assist in the commission of the robbery or

benefit in the proceeds, knowingly furnish substantial assistance in the commission of the robbery

and that the defendant knew the other person intended to commit the robbery. Tenn. Code Ann. §

39-11-403(a) (2003). 

Proof at trial established that Sullivan struck the victim in the head multiple times with a tire

tool, resulting in the death of the victim. Contemporaneous with the murder, the victim’s wallet was

taken from his pants. The State’s theory at trial, in fact, was that the victim’s pants literally were

pulled from his body in an effort to get his wallet from the pants. Clearly, the victim, who suffered

serious bodily injury leading to death, was robbed of his wallet and money and this was

accomplished with a deadly weapon, namely a tire tool. Subsequently, Sullivan took $700 to $900

from the wallet. While the defendant testified at trial that Sullivan took the wallet from the victim’s

pants, at one point she had admitted to the police that it was she who took the wallet from the

victim’s pants. The jury’s verdict obviously reflected a belief that the defendant may not have

physically taken the victim’s wallet, but she nonetheless knowingly furnished substantial assistance

in the commission of the robbery, a determination which is supported by the evidence. She was

present during the robbery and murder, drove her codefendant from the scene to Florida, changed

her appearance the day after the crime, helped spend the victim’s money during her trip, had her car

cleaned and tires changed in an effort to conceal the crime, asked friends to lie and provide alibis,

and gave at least three different stories to the police. We conclude that the evidence is sufficient to

support this conviction.

Finally, the defendant’s convictions will stand regardless of the outcome of the trial of her

codefendant, Eric Sullivan. By virtue ofTennesseeCode Annotated section 39-11-407, the outcome

of the codefendant’s trial cannot benefit this defendant:
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In a prosecution in which a person’s criminal responsibility is based

upon the conduct of another, the person may be convicted on proof of

commission of the offense and that the person was a party to or facilitated its

commission, and it is no defense that . . . [t]he person for whose conduct the

defendant is criminally responsible has been acquitted, has not been

prosecuted or convicted, has been convicted of a different offense or different

type or class of offense, or is immune from prosecution.

Tenn. Code Ann. § 39-11-407 (2003). In sum, the defendant’s convictions for facilitation of

especially aggravated robbery and facilitation of felony murder, two distinct and separate crimes, can

stand independently regardless of whether Eric Sullivan is convicted or acquitted, or never

prosecuted at all, for the underlying crimes of especially aggravated robbery and felony murder.

II. Jury Instruction as to Accessory After the Fact 

The defendant asserts that the trial court erred in not including an instruction on accessory

after the fact as a lesser-included offense of each of the charged crimes in its jury instructions.

Acknowledging the holdings of this court in State v. Hodgkinson, 778 S.W.2d 54 (Tenn. Crim. App.

1989), and State v. Hoosier, 631 S.W.2d 474 (Tenn. Crim. App. 1982), the defendant notes that each

concludes an accessory after the fact instruction need be given only if the defendant is charged in a

separate count with accessory after the fact. She asserts, however, that those cases “involved facts

that are at odds with the facts presented in this case” and that the facts of the present case

“established the elements of accessory after the fact.” We respectfully disagree that the facts of the

present appeal justify our not applying the holdings in those cases. This court has consistently held

that accessory after the fact, as defined in Tennessee Code Annotated section 39-11-411, is a separate

and distinct offense, rather than a lesser-included offense. See Hodgkinson, 778 S.W.2d at 63;

Hoosier, 631 S.W.2d at 476. Moreover, this court has concluded that the landmark case dealing with

lesser-included offenses, State v. Burns, 6 S.W.3d 453 (Tenn. 1999), and its analysis do not change

the traditional view that accessory after the fact is a separate and distinct offense from the substantive

offense. See State v. Joel M. Puentes, No. M2001-01115-CCA-R3-CD, 2002 WL 127366, at *4

(Tenn. Crim. App. Feb. 1, 2002); State v. Jon Robert Goodale, No. M2000-02140-CCA-R3-CD,

2001 WL 1077965, at **4-5 (Tenn. Crim. App. Sept. 14, 2001), perm. to appeal denied (Tenn. Feb.

19, 2002). The defendant was not charged in the indictment with accessory after the fact; and,

accordingly, it was not error when the jury was not instructed on this offense.

III. Sentencing

The trial court imposed consecutive sentences based on two of the criteria set forth in

Tennessee Code Annotated section 40-35-115, namely that the defendant was a professional criminal

who has knowingly devoted her life to criminal acts as a major source of livelihood and her record

of criminal activity is extensive. She admits the existence and applicability of an extensive criminal

record but disputes that the record supports the trial court’s determination that she devoted her life

to criminal acts as a major source of livelihood. Additionally, she asserts that consecutive sentences
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are not permitted under Tennessee Code Annotated section 40-35-115 if only one of the criteria is

applicable. The State disagrees.

When an accused challenges the length, range, or manner of service of a sentence, it is the

duty of this court to conduct a de novo review on the record with a presumption that “the

determinations made by the court 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 record that the

trial court considered the sentencing principles and all relevant facts and circumstances.” State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting a de novo review of a sentence, this court

must consider (a) any evidence received at the trial and/or sentencing hearing, (b) the presentence

report, (c) the principles of sentencing, (d) the arguments of counsel relative to sentencing

alternatives, (e) the nature and characteristics of the offense, (f) any mitigating or enhancing factors,

(g) any statements made by the accused in his own behalf, and (h) the accused's potential or lack of

potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-103, -210.

The party challenging the sentences imposed by the trial court has the burden of establishing

that the sentences are erroneous. See Tenn. Code Ann.§ 40-35-401, SentencingCommission Cmts.;

see also Ashby, 823 S.W.2d at 169.

The Tennessee Criminal Sentencing Reform Act of 1989, enacted to “promote justice,”

Tenn. Code Ann. § 40-35-102 (2003), provides that the sentence imposed upon an offender should

be the “least severe measure necessary to achieve the purposes for which the sentence is imposed.”

Tenn. Code Ann. § 40-35-103(4) (2003). 

A trial court may order that the sentences of a defendant convicted of multiple offenses be

served consecutively if any one of the statutory criteria in Tennessee Code Annotated section 40-35-

115 is met. These considerations are set out in the alternative with the disjunctive “or”; therefore,

only one of the criteria need be met in order for the trial court to impose consecutive sentences. The

defendant admits she has an extensive criminal record. That alone supports the imposition of

consecutive sentences. According to the presentence report summary, the defendant’s numerous

incarcerations resulted in her having a spotty work record:

[The defendant] has a very limited work history since most of her adult life

has been spent in the prison system. While in prison she has been on the

work release program and worked on the landscaping crew. She stated she

also helped Bill Lewis in his roofing business but this was not verified. She

stated she did work for LTD out of Smithville for about one year but due to

surgery quit that job. In September, 1990, [the defendant] was arrested, along

with her husband, Paul Farley, for aggravated kidnapping and robbery. She

received a twelve yearsentence for this and served this in the women’s prison

in Davidson County. She was paroled on June 8, 1993. She violated her

parole by obtaining a new charge of possession of marijuana on Feb. 14,

1994. Her parole was revoked on March 21, 1994 and she was returned to
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prison. She was paroled again on September 18, 1995. Once again she

violated her parole on December 8, 1995 by testing positive for cocaine on

a drug screen. Her parole was revoked on January 23, 1996. [The defendant]

was paroled again on February 24, 1997. On November 3, 1997 [she] tested

positive for cocaine and this violated her parole. Her parole was revoked on

December 2, 1997 and she was returned to prison. Her sentence expired on

April 26, 1999.

The presentence report also indicates the defendant has the following prior criminal history: an

assault charge in 2001; violation of an order of protection in 2000; a misdemeanor assault conviction

in 1999; an aggravated kidnapping conviction in 1991; and a felony forgery conviction in 1990. The

trial court need only find the presence of any one of these criteria “by a preponderance of the

evidence.” Tenn. Code Ann. § 40-35-115(b) (2003). The defendant’s lengthy record of convictions

shows that she has been active in committing crimes, but not the extent to which she supported

herself by these acts during the periods she was not incarcerated. However, even if the trial court

erred in determining that she was a professional criminal, the defendant’s numerous convictions

justify consecutive sentencing.

CONCLUSION

Based on the foregoing authorities and reasoning, the judgments of the trial court are

affirmed. However, we note that the judgments list differing offense dates, with the two which are

the basis for this appeal listing May 7, 2000, as the offense date, while that of criminally negligent

homicide, which was merged with the conviction for facilitation of felony murder, bears May 5,

2000, as the offense date. According to the proof, the offenses occurred on May 4-5, 2000, and we

remand for entry of corrected judgments reflecting this date.

___________________________________ 

ALAN E. GLENN, JUDGE