### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE August 22, 2000 Sessio

n
STATE OF TENNESSEE v. PAUL A NDREW THOMPSON
Appeal from the Criminal Court for Hancock County No. 2194 James E. Beckner, Judge

No. E2000-01224-CCA-R3-CD October 12, 2000

The defendant appeals his conviction for first deg ree murder

and sentence of life imprisonment withoutparole, contending (1) that the evidence was insufficient to establish premeditation, (2) that the testimony of Kimberly Johnson, the victim’s ex-stepdaughter, was improperly excluded, and (3) that the evidence was insuf

fic ien t to est abl ish the aggr avat ing c irc ums tan ce of mut ila tio n of the bod y. We affirm the defendant’s conviction and sentence.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which D AVID H. W ELLES and R OBERT W. W EDEMEYER , JJ., joined.
Douglas A. Trant, Knoxville, Tennessee, attorney for appellant, Paul Andrew Thompson.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant At torney Gen

eral; C. Berkeley Bell, Jr., District Attorney General; and G. Douglas Godbee, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Paul A

ndrew Thompson, a

ppeals as of right his conviction by a jury for first deg ree mur der, for which the jury sentenced him to life imprisonment without the possibility of parole. The defendant contends (1) that the evidence wa

s insufficient to

establish premeditation, (2) that the testimonyof Kimberly Johnson, the victim’s ex-stepdaughter, was improperly e xcluded, and (3) that the evidence wa s insufficient to establish mutilation of the body, the only aggr avating circumstance upon which the sentence of life without the possibility of parole was based.

At tri al, Li eutenant Phillip Johns on, with the Claibor

ne County She

riff’s Departme

nt, testified as follows: On February 25,1998, he went to Clinch River Road to investigate a truck that
was in the river. The front of a red and silver F-350 pickup t ruck was lodged against a tree in the river. The truck was a king cab and had back do or s. He and the other investigators saw a human-2-

elbow protruding from

underneath a

tarpaulin in the truck bed. When he removed the tarpaulin, he
saw the body of a white male, who was later identified as Jacob Schr effler. A ratchet strap was aroundthe victim’s mid-section, and the body was covered with dirt and sawdust. The victim had four stab wounds a

nd a round hole in hi

s back, which appe

ared to be a bulle

t hole. Histhroat was cut from one ear to hischin. The victim’s legs, knees, an

d forehead wer

e cut. He had a la

rge hole in the center of his chest, and his right leg appeared to be broken.

Johnson stated that he fou nd a bolt-action sh

otgun inside the tr

uck but t hat the bol t was missing. The Tennessee Bureau of Investigation (TB I) Crime Lab searched the truck for e vidence. Johnson and Michael Vinsant, a TBI specia

l agent, matche

d the truck’s lice

nse plate number t

o the victim, who had a

Han cock County address. Johnson then spoke with Hancock County Sheriff’s Department

Officer Steve Br yant , wh o to ld h im t hat the vic tim had been mis sin g for sev eral days and was last seen with the defendant and the defendant’s wife, Pam Thompson. Johnson and Vinsant went to the defendant’s house, but no one was there. The next morning, Joh nson went to the school that the defendant’s children attended and learned tha

t the defendant a

nd his wife were at the Villa Motel. When he went to the def endant’s motel ro

om, the defendan

t said that he was ju

st going to see Johnson. Johnson r ead the defenda

nt his Miranda

rights, and the defenda nt said that it was in self-def

ense and that he h

ad to do it.
Agent Steve Vinsant testified as follows: He examined the body of the victim at Claiborne County Hospital. The body had a la rge cut on the he

ad, a large hol

e in the chest, and

a small hole and stab wou nds i n the back. The x-ray of the torso revealed numerous white specks which w ere particles of meta

l from a bullet.

Vinsant sta ted tha t wh en t he d efen dan t wa s ta ken int o cu sto dy, he indicated that he wanted to make a statement.

Vinsant read the

defendant his Miranda

rig hts, an d the defendant signed a waiver. The defendant stated, “I had to do it. Jake’s a big man. He was slinging me around like a rag doll.” The defendant did not mention his daughter.

Vinsant testified that the defendant’s wife consented to a search of their residence. During the search, Vinsant

recovered a ph

otograph of the

defendant holdin

g a high-powe

red rifle. He al

so noticed a burned area in the dri vew ay, near which he found and collected samples of soil and gravel which were reddish brown and appeared to be stai ned with blood. He also collected samples of tarpaulin fibers from the same area. All of the evidence was sent to the TBI crime lab. T he tests on the soil samples revealed that the reddish brown material was human blood with the victim’s DNA. The tests on the tarpaulin fibers revealed that the fibers were consistent with the tarpaulin in which the victim’s body had been wrapped.

Vinsant stated that Investigator Ted dy C ollingsworth of the District Attorney General’s Office recovered

a high-pow ered rifle several days later and that it was sent to the crime la b for testing. Also, Vinsant recovered the bullet that was removed from the victim’s body during the autopsy, and ballistics testing showed that the bullet was fired from the same rifle.-3-

Hancock County Sher

if f’s Investigator Steve Bry ant testified as follows: He collected samples of red spots and

hair from the defendant’s driveway. He also rec overed a Marlboro pack that had red spots on it. He gave this evide nce to the TBI. He also noticed ashes in the driveway and found two dually truck tire tracks in the ashes.
John Cook, a neighbor of the defendant and of the victim, testified as follows: He last saw the defendant in the afternoon of February 22, 1998, walking with his daughter toward the victim’s house. He heard gunshots later that afternoon, but none sounded as if the y came fro

m a highpowered rifle. The next day, Fran Styles, a fr iend of the v ictim, called hi m and said that she had been u n able to contact the victim. Styles asked him to look for the victim. Cook went to the vict im’s hou se but did not find him. As he was returning home, he noticed tire tracks from the victim’s tru ck i n th e def end ant ’s d riv eway. The following day, February 24, 1998, Cook went to the defendant’s house, and the defendant’s wife told him that the defendant was working out of town. Cook also testified

that the defenda

nt usually smo

ked Marlboro cig

arettes.

Dr. Cleland Blake, a physician and forensic pathologist, testified as follows: On Fe bruary 26, 1998, he performed an

autopsy on the victim. The victim’s body had a gunshot wound in the back;
a two and one-half

inch hole in the chest; a major cut across the forehead caused by a heavy , sharp edge; a superficial cut about

six inches long across the neck; four stab wounds in the back; fractures of b oth legs caus ed b y heav y pres sur e ex ert ed fr om t he b ack a s if the bod y had been run ove r by a car; multiple scratch abrasions; scrape abrasions on the face, thenose, and the forehead; and scrape abr asions on the legs from b eing dragg

ed. The bullet ent

ered the back, d

estroying th e vertebra l column and completely cutting the spinal cord, trave led through a lung and the heart, and stopped just under the skin of the chest. The bullet was a .25 caliber, talon bullet, which has sharp petals that tear tissue as it travel

s through the body

. The cut on the for

ehead went throu

gh th e bon e and damaged the brai n. T he h ole in t he ch est was caus ed b y a lo ggin g pea vey, which went through the ribs, through the surface of th e lungs, thr ough the hear t, through the diaphragm, and into the stomach and colon. Most of the injuries were inflicted after the victim had died, including the cut across the forehead, the cut across the neck, the leg f

ractures,the leg scrapes, and the stab wounds in the back. The toxicology tests revealed that the victim had ingested ethy l alcohol , cocain e, and norpropoxyphene shortly before his death.
Investigator

Teddy Collingsworth, from the Hancock Coun ty Dis trict Attorney’s Office, testified that on February 26, 1998, he photographed the defendant’s body, which had no noticeable, large injuries. The next day, after the defendant waived his Miranda

rights, the defendant made the following statem

ent:

I stopped near where I ran the truck off the road at Clinch River and throw ed the 257 Roberts rifle, knife, axe, clothes, board, chun k of wood two and a half feet long. I bought two boxes of shells a l

ong time ago. Th

e rifle was in a hard c ase. I don’t want to make any

other statements.-4-

Collingsworth

said that on March 2, 1998, he recovered a .257 caliber rifle in a hard case from a car at Bobby Powell’s home. Later during the inve stigation, he recovered a logging pe avey from the victim’s tool shed.

The defendant testified as follows: On February 22, 1998, he and his daug ht er w ent to the victim’s house. Richard Maloney, a friend of the defendant and of the vic tim, and his son were already at the victim’s house. The three men drank alcohol and shot g

uns, while the two children played. About thirty m

inutes af ter Maloney and his son left, the defendant’s daughter lef t and walkedback home. A little la ter, he started to walk home, but the victim drove next to him and insi sted on giving h im a ride. The victim drove the defendant to his house, but as the victim was leaving, he backed the truck into the house. The defendant went inside the house to see if anything had been damaged, and then he went back outside to find something with which he could patch the hole. He covered the hole with a piece of tarpaulin and some tape. When he went back inside, his seven-ye ar-old daughter was v

ery upset a

nd said that the victim had put someth ing in her bottom. The defendant looked at her bottom and noticed that it was red and swollen and that her panties had blood on them. He went outside a nd confronted the victim, which led to a physical altercation. After a brief fight, the victim w

alked to his

truck, reached into the back door, and drew a rifle. When the defendant saw the butt of the rifle, he shot the victim. The def endant stated that he did not
rem emb er do ing a nyth ing e lse to t he b ody.

On cross-examination, the defendant admitted that he knew that the gun found in the back of the truck could no

t have been fire

d because it did

not have a bolt. He also stated that he gave his gun to Robert Powell and asked him to hold it. Th e defendant testified that his wife had rented another house and that his c

hildren were re

giste red for school in a jurisdiction other than the one where he resided. The defendant, however , deni ed that his wife was leaving him. The defendant also said that he did not see the victim hug or touch his wife.

The defe ndant’s da ughter testified as follows: On February 22, 1998, she went with her father, the defendant, to the victim’s house. Shewent behind the tool shed and as she was relieving herself, she felt a hard stin g in her bottom. She pulled up her pants, turned around, and saw the victim. The victim told

her not to tell anybody. She went to her father and said that she w

anted to leave, and her father told her to walk home. When she got home, she went to bed. Sometime later, there was a bang on her bedroom wall. She ran outside and saw that the victim’s truck had crashed into the house. When her father came inside, she told him that the victim had touched her, and she showed him the blood

on her panties.

Dr. Mike Buckner, the defend ant’s psychologist, testified as follows: He had seen the defendant eleven times since April 16, 1998, and diagnosed the defendant a

s having post-tra

umatic stress disorder and single-episode depression. He stated that the defendant, as is common with posttraumatic stress disorder, had some m emory lo ss of the events sur rounding the mur

der. In his opinion, within a reasonable degree of psycholog ical certainty, the

defendant

could not have formed the intent to commit m

urder. On cro ss-examination, he stated that if the information that the defendant provided was false, then his diagnosis would be flawed.-5-

Michael Cohan, the defen dant’s private in

vesti gator, testified that he investigated the victim’s residence. He stated that there were five children’s bicycles a nd a sledbehind the victim’s tool shed.

The state called th ree rebuttal witnesses: Teddy Collingsworth, Richard Maloney , an d Teres a White. Collingsworth testified that he talked to the defendant’s daughter the day after the victim’s body was fou

nd and that she mad

e the following s

tatement:
[O]n Sunday I went with my da ddy to Jake’s house where they shot a gun. Richard and Matthew were there. Jake backed his truck into our house. This was about dark. Daddy was drinking beer. Jake never to uched me on my privates. Mommy

said daddy shot a deer t hat ni ght. I h eard t wo gun shots . Then when I g ot up the next morning, Jake was gone with his truck. I haven’t seen him since.

RichardMaloney, a neighbor of the defendant and victim, testified as follows: He last saw the victim at the victim’s house on February 22, 1998. The defendant and his daug hter were also at the victim’s house. He and the defendant saw a gun in the back of the victim’s truck, but the gun
was missing the bolt

that ejects the ca

rtridge. He te

stified that the de

fendant said

that he would like to shoot t he gun when the bolt was fixed. He said that when the defendant’s wife drove by the victim’s house, the defen dant call ed her a derogatory name and made a g esture with his hand as though shooting her with a gun.

Teresa White, an ex-neighbor of the defendant, testified that her daughter in vited the defendant’s daughter to spend the ni ght at her house on March 19, 1998. During the night, the defendant’s daughter started crying and told her the following : She did not want her father to get out of jail. When the victim was at her home, her parents had gotten int o a fight. Her father hit her
mo ther , and the victim said to her father that if he had a wife like that, he would not hit her. Her father accused the victim of doing something with his wife, and as the victim was leaving the house, her father shot him. Her

father buried

the body in the

back yard

, but dug it up beca

use he was afra

id that it would be found. He then cut up the body, placed it in a plastic bag, and dumped i t in th e Clinch River. The defen

dant’s daughte

r also told White that there wa

s blood all over the

house and that she, her brother, and her mother cleaned it up.

I. SUFFICIENCY OF THE EVIDENCE

On appeal, the defendant contends that the evidence is insufficient to show premeditation on his part. The defendant asserts that there is nosubstantive proof of premeditation, that the only proof of premeditation was impeachment evidence, that he lacked the culpable mental s

tate toform intent, and that the state’s theory in reb uttal closing argument supports only a conviction for voluntary manslaughter. The state contends that the evidence is sufficient.

Ourstan dard of review when the sufficiency of the evidenc e is questioned on app eal i s “whether, after viewing

the evidence in th

e light most

favorable to the prosecution, any rational trier of fact could hav

e found the essen

tial elements of th

e crime beyond a re

asonable doubt.” Jackson-6-

v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the evidence but presume that th e ju ry ha s resolved all con flicts in the testimo

ny and draw

n all reasonable

inferences from the evidence in favor of the stat e

. See State v. Sheffield

, 676 S.W.2d 542, 547 (Tenn. 198

4); State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).

First degree pr

emeditated murder is defined as a “premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). Further, “premeditation” is defined as

an act done after the exercise of r eflection and judgment. “Premeditation”
means that the intent to kil l must have been forme

d prior to the act it

self. It is notnecessary that

the purpose to kill pre-exist in the mind of the accused for any defin ite period of time. The mental state of the accused at the time the accused allegedly decided t o kill must be caref ully conside

red in order to determine whether the accused was sufficiently free f rom e xcitement and passion as to be capable of premeditation.

Id. § 39-13-202(d). The element of premeditation is a question for the jury and may be established by proof of the circumstances surrounding the killing. State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997). Our supreme court has stated that the f ollowing circumstances are demonstrative of the
ex ist ence of premeditation: the use of a deadly weapon upon an unarmed victim, the particula r cruelty of the killing, declarations by the defendant of an intent to kill, evidence of procurement of
a weapon, preparations before the killing for concealment of the crime, and

calmness immediat

ely after the killing. Id.

The evidence, not including evi dence introdu ced for impeach ment purposes, in th

e light most favorable to the state reveals that after a day of shooting guns a nd drinking, the victim drove the defendant home. The defendant had a m otive t o kill the victim either because of his marital problemsor because of his daughter’sstatement. The defendant acted upon his motive by obtaining
a high-powered

rifle while the vic

tim was at his

house and shooting the unarmed victim in theback. The defendant then wrapped the victim’s body in a tarpaulin, p laced it in the bed of the victim’s truck, and drove the truck into a river. The defendant gave the gun to a friend, who hid it under a car, and disposed of the other weapons by throwing them into

the river. The de

fendant then hid in
a motel roomuntil he was located by the police. The evidence viewed in this light reveals that the defendant had a motive to

kill the victim, that he procured a deadly weapon, that he shot an unarmed victim in the back, and that the defendant calmly tried to conceal the crime. A rational jury could have found beyond a reasonable doubt based upon reasonable infer ences from these circumstances that the defendant was sufficiently free from excitement and passion to premeditate the murder.

The defendant also contends that the evidence was insufficient to establish intent, arguing that Dr. Buckner presented

uncontradicted testimony that the defendant could not have formed the intentto commit murder. However, this testimony was not uncontradicted. Dr. Buckner admitted that his diagnosis co uld be flawed if the d efendant had not

told him the truth. Ho

wever, we must presume again that the jury resolved the conflicting testimony in the state’s favor. In viewing all of-7-

the evidence in the light most favorable to the state, we conclude that a rational trier of fact could have found bey

ond a reasonable

doubt that the defe

ndant intentionally

killed the victim.

Fin all y, the defendant contends that the state’s closing argument shows an absence of premeditation. The defendant asserts that the state’s argument supports only a verdict of voluntary manslaughter and not one of murder. The state argued:
I, ladies and gentlemen, submit to you t hat he went in

to a jealous rage, that he thought for some reason. He knew Pam was leaving him. She put h er kids in another s chool. Rented ano

ther house. She g

oes by, this is

Sunday rig

ht before it happens, you know b-i-t-c-h. He gets over there, he s ee s Jake do something, say something to her a nd he goes into a rage; and he militates [sic] this body. Not because of

wha t he says Jake did to [his daugh ter]. He militates [si

c] his body as a message to his family, to his wife. Don’t leave me. Don’t mess with other people. This is what’s going to happen.
First, a rational jury could infer premeditation from this argument, considering it along with all of the evidence presented

in the case. Second, this argument was one of a couple of theories presented by the state in its closing. The state undoubtedly knew that the jury would be charg

ed with the lesser included offense of volun tary mansla

ughter. Even if

this a rgument supported voluntary manslaughter, it i s n ot error to present alternative theories supporting the different offenses to be charged to the jury. T

he jury was

entitled to rejec

t this theory i

n favor of anothe

r. Finally,

and most imp ort ant ly, this was argument, not evidence. The jury was inst

ructed accord

ingly. The

jury could have completely

ignored this

argument in reaching a verdict based upon the evidence. We conclude that the state’s argument does not render the evidence insufficient to show premeditation.

II. SURREBUTTAL TESTIMONY

The defendant contends that the trial co urt err ed in not allowing him to introduce the surrebuttal testimony of Kimberly Johnson, the victim’s ex-stepdaughter. At the close of the state’s rebuttal evidence, the defendant asked to call Johnson. The defendant asserted that Johnson would testi fythat approximately nine years ago, the victim was convicted of assaulting her and that on another occasion the vict

i m entered her

bedroom and fondl

ed her. The tria

l court ruled that t

his testimony was no t proper surrebuttal evidence because it did not specifically answe r the state’s rebuttal evidence.

Rebuttal evidence is “an y competent evidence which explains or is in direct reply to or a contradiction of material evidence introduced by the accused.” Nease v. State , 592 S.W.2d 327, 331 (Te nn. Crim. App. 1979). The state is given the right of rebuttal because it “does not and ca nno t know what evidence the defense will use until it is presented at trial.” State v. Cyrus Deville Wilson , No. 01C01-9408-CR-002 66, David son Count y, slip op. at 9 (Tenn. Crim. App. Nov. 15, 1995) (citation omitted). Following the state’s rebuttal, the defendant is en titled to present surrebuttal evidence to explain, contradict, or directly reply to the state’s re buttal evidence. See State v. Evans ,-8-

710 S. W.2d 5 30, 535 (Tenn. Crim. App. 1985) (holding that surrebuttal testimony was improper be cause it did not contradict the state’s rebuttal testimony). Because there must be “‘an e nd to t h e calling of witnesses at some time’ . . . as well as ‘a limit to [the evidence received in] rebuttal and surrebuttal,’” questions regarding the admissibility of rebuttal and surrebuttal evidence a re left to the sound discretion of the trial court. State v. Scott , 735 S.W.2d 825, 828 (Tenn. Crim. App. 1987) (citations omitted). The trial court’s decision will only be reversed upon a showing of a clear abuse of discretion. Id. (citation omitted).
First, the defendant argues that he should have been able to introduce Johnson ’s testimony because the trial court stated that it may have been relevant if it had been offered durin

g the defendant’s case-in-chief. The defendant relies on State v. Kendricks , 947 S.W.2d 875 (Tenn. Crim. App. 1996), in which the

trial court allowe

d the state to

introduce rebuttal testimony that should have been intro duce d in its case-in-c hief. The defen

dant asserts that h

e should receive

the same benefit in this case. First, we note that the trial court in the present case stated that Johnson’s testimony may
or may not have been rele

vant in the defend

ant’s case-in-

chief. Theref

ore, Johnson’s testi

mony is unlike the testimony in Kendricks because it was not unquestionably relevant. Regardles s, i n Kendricks , this cour t did n ot hold that the state always has a right to present rebuttal evidence that should have been introd

uced in its case-in-chief. Accordingly , the defendant in

the present case

did nothave a right to in

troduce surrebu

ttal evidence jus

t because it may

have been admis sible in his case-in-chief.

The defendant also

argues that even if he

was not allowed to present Johnson’s testimony as
a matter o f ri ght, he should have been allowed to introduce it to contradict the testimony of the rebuttal witnesses. In

the present case

, the state prese

nte d three reb uttal witnesses: Teddy Collingsworth, Teresa White, and Richard Maloney. The defendant asserts that Johnson’s testimony regarding being assaulted by the

victim would have contradicted White’s testimony, which implied that the victim was not the initial aggressor. He also argues that Johnson’s testimony reg arding the sexual assault by the victim would have contradicted the testimony of White and Collingsworth.

White was called to impeach the testimony of the defendant’s daughter. She testified that the defendant’s daughter told her that her father shot the victim after accusing him of having something to do with

his wife. White also testified that the defendant’s daughter told her that her father buried the victim, then dug him up, cut him up, and dumped him in the river. The version of the murder that the defendant’s da

ughter told White

contradicts the defendant’s daughter’s testimony, in which she alleg ed that the victim sexually assaulted her. Collingsworth was also called to impeach the testimonyof the defendant’s daughter, and he testified that the defendant’s daughter told him that the victim never touc

hed her private p

arts.

In refusing to allo

w Johnson’s testimony

, th e trial c ourt stated that surrebuttal is to answer speci fically

the state’s rebu

ttal evidence an

d found that the pro

ffered testimony

was not within

th e scope of surrebuttal. Although we acknowledge that the testimony might ha ve some relevance for contradicting the state’s rebuttal proof, we viewit to be marginally probative. We cannot say that the tri al c our t ab use d it s di scr eti on i n ref usi ng to all ow J ohn son ’s t est imo ny. Moreover, we doubt that-9-

the testimony was admissible under Tenn. R. Evid. 404(

b). Rule 404(b) states, “Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in conformity

with the charac

ter trait.” Howe

ver, such eviden

ce may be a

dmissible if it is off

ered to show identity, intent, or to rebut a claim of accident or mistake. SeeTenn. R. Evid. 404(b), Advisory Commission Comment; State v. Parton , 694 S.W.2d 299, 303 (Tenn. 1985).

In the present case, the defendant sought to introduce Johnson’s testimony to show that the victim assaultedand sexually assaulted her. While this evidence arguably would have rehabilitated the defe nda nt’ s da ught er’s cred ibi lit y, it would have done s o because it suggests that the victim had
a propensity to be the initial aggressor and/or to sexually assault children. This is the type of evidence prohibited by 404(b).

III. MUTILATION AS AN AGGRAVATING CIRCUMSTANCE

The defendant contends that the trial court should have dismissed mutilation of the body as
an aggravating factor because no proof of mutilation existed. The defendant’s argument rests upon his definition of mutilation. The defendant as s erts that mutilation is limited to severance or destruction of a body pa

rt. The state argues that mutilation encompasses a broader range of behavior, including stabbing or cutting the body after death. We ag ree with the state.

Mutilation is not defined in our code. When w ords in statutes ar

e not defined, the

y must be giventheir ordinary and natural meaning. See State v. Williams , 690 S.W.2d 517, 529 (Tenn. 1985). In Webster’s Third New International Dictionary , 1493 (1993), the verb “mutilate” is defined as: “1. to cut off or perm anently destro y a limb or es sential part . . . 2. to cut up or alter r

adically so

as to make imperfect.” Merriam-Webst er’s Col legiate Dictionary , 768 (10th ed. 1994), provides an identical definition of “muti late,” except t

hat the prim ary and se

condary de

finitions are rev

ersed. This reversal is significant because only the first definition in Webster’s (the second definition in MerriamWebster’s ) supports the defendant’s assertion that mutilate means to s ever or de stroy a body part. However, the second definition in Webst er’s (the first in Merriam-Webster’s ) supports the state’s view that mutilate has a broader definition. We believe tha t the ord inary and natural meaning of mutilation, and the one that our General Assembly intended, is the broader definition.

This court has previously stated that the legislative i ntent underlying mutilation as an aggravating

circumstance mu

st be “th at the General Assembl y . . . meant to

discourage co

rpse desecration.” Statev. David Eric Price , No. E1999-02684-CCA-R3-CD, Hamilton County, slip op. at 42 (Tenn. Crim. App. July 25, 2000). “Desecrate” is defined as: “1. To violate the sanctity of . .

. 2. t o tr eat dis res pect ful ly, i rrev eren tly, or outrageously.” Merriam Webster’s Collegiate Dictionary 312 (10th ed. 1994). Given the meaning of desecrate, this intent suggests a broader meaning than just severing or destroying a body par t. However, a corpse can be desecrated in many ways without being mutilated, e.g. , dumping a body in a river. Therefore, while this court’s view of the legislative intent provides some guidance, it is not conclusive as to the intended definition of mutilation.-10-

The manner in which th

e Tennessee Supr

eme Court h as u sed the term “mutil ation” also indicates that it views mutilation to have a broader definition than the

one proposed by

the defendant. In State v. Zagorski , 701 S.W.2d 808 (Tenn. 1985), the court addressed the aggravating circumstance of the murder being

especially

heinous, atrocious, or cruelin a case in which the victims died from gunshot wounds but also had their thro ats cut

. Zagorski , 701 S.W.2d at 814. No body parts were severed or destroyed. The court affirmed the finding of the aggravating circumstance, stating that the defendant needlessly mutilated the victims. Id.

In State v. Smith , 868 S.W.2d 561 (Tenn. 1993), the court used mutilation in a similar manner. In Smith , one of the three victims died from a gunshot wound, but the defendant, after the victim was dead, slashed her nec

k and stabbed her

witha knife and an awl. Id. at 566. There was no allegation of body parts

being severed or destroyed. After analyzing the aggravating c ircumstance of whether the murder was espe

cially heinous, atrocious, or cruel, the court concluded that this circumstance was applicable

because of “the multip licity of the wounds, the infliction of gratuitous violence on the victims and their

needless mutilation.” Id. at 580. Using mutila tion in this manner is

consistent with the broader definition of mutilation.

We hold that mutilation as used in Tenn. Code Ann. § 39-13-204( i)(13) ha s a broader definition than just the destroying or severing of body parts. Mutilation also includes “to cut up or alter radically so as to make imperfect.” See Browne v. State, 933 P. 2d 187, 193 & n.3 (Nev. 1997) (approving an instruction that mutilate means “to cut off or permanently destroy a limb or essential part of t he b ody or

to cut off or alter radically so as to make imperfect”) (e mphasis added).

We conclude that the trial c ourt did not err in applying mutilation of the body as an aggravating

factor. After the victim died, the defendant stabbed h im four times in

the back with a knife, slit his throat, cuthis forehea d and legs, an d fractured b oth of his l egs by exerting great pressure from behind. This evidence is sufficient to support the finding of mutilation of the body. IV. CONCLUSION

Based upon the foregoing and the record as a whole, we affirm the defendant’s conviction and sentence.

___________________________________ JOSEPH M. TIPTON, JUDGE