### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs S ep te mb er 24, 200 8

STATE OF TENNESS EE v . MICHAE L E. STE WART

Appeal from t he Criminal Court for Polk Coun ty No. 02-180 Car roll L. Ross, Jud ge

No. E2007-00841-CC A-R3- CD - Filed May 13, 2009

The de fenda

nt, Michael E. Stewa

rt, appe als as of r ight f

rom his convictions by

a Polk County

jury

o f f i rs td egr ee p re m ed i t at edm u rd er , fi rs td egr ee fe l o n y m u rd er i nt h e p er

p et ra t i o no f k i dn ap p i n g, k i d n ap p i ng , a Class C felony , and tamper ing w ith evidence , a Class C felony . The murde r convictions wer e mer g ed, and the defe ndant was se n t en ce d t o life and to e ight y ear s for the two C l as s C felonies, which are to be serve d concur rently to eac h other but conse cutively to the life
sentenc e, for

an ef fec tive sentenc e of life plus eig ht y ear s. The def endant c ontends that the evide nce is insufficient to support the fe lony murder a nd kidnapping convictions and that the tria l court er red in admitting evidenc e that the de fenda nt was take n into custody

on outstanding war

rants from other char g es. We aff

irm the judg ments of the trial c ourt.

Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Cr iminal Cou rt A ffirm ed

J OS EP H M. T I P TO N , P.J., delivered the opinion of the court, in which D AVI D H. W ELL ES and J ERRY L. S MIT H , JJ., joined.

John E. Her

bison, Nashville, Tenne ssee ( on appea l); and Jer ry Hoff er, Clev eland, Te nnessee (at
tr ia l) , f or the app e lla nt, Mic ha e l E . St e wa rt

. Robert E. Cooper, Jr., Attorney Genera l and Reporter ; Matthew Bryant Ha skell, Assistant Attorney Gene ral; Ro b e r

t S te v e Beb b , District Attorney Ge neral; and Matthew Dunn a nd Shari Tayloe Y oung, Assistant District Attorneys Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

This case involves the death of Willard Trentha m. The victim died from injuries he sustained in b e a tin gs by the de fe nd a nt.

Detec tive Joe Price of

the Polk County Sheriff’ s Depa rtment testified that he w as working
as a patrol office r ar ound 11:00 p.m. on July 20, 2002, when hewas dispatche d to the Ladd Springs

are a re garding a

possible fight. He said that it took him about fifteen to twenty m inutes to arrive and that although no one wa s prese nt w hen he rea ched the location, he f ound a shoe, some loose change

,-2-

and what appea

red to be blood on the road. H e said he rec eived a dispatch at 12:30 a .m. on July 21 to go to the h o m e o f Paul and W anda Stewa rt rega rding a possible death. He said that whe n he

arrived, Off

icer Epperson was already there and direc ted hi m to the bac k seat of a red Chevy Corsic a pa rk e d in the dr ive way. He sa id the vic tim wa s dea d on the ba c k seat. He sa id tha t th e de fe nd a nt, Wanda Stewart, a nd Samantha Bivens wer e present and that the defendant was place d in custody on the basis of some outstanding wa rra nts. He said that as he and Officer Epperson were securing the

scene , he saw a shoe on the front porc h that was the ma te to the o ne he ha d seen e arlier when he responde d to the fight call on Ladd Springs Road. H e said the vic tim was not wearing shoes. He identified two shoes a s the one he fo u n d at t h e s ce n e of the fight call and the one he found at the Stewart re sidence

. Brad Stamey testified that he was a friend of the defendant. He sa id that on July 20, he had jus t be e n r e le a se d on p aro le a ndsn uc k a c ro ss the Te nn e sse e -G e or gia state lin e to v isi t hi s p are nts , Kenne th and Sue Stamey, who wer e ca mping. He said the victim, Donnie Payne , Junior Swinford, and Diane Trentha m were at the ca mpsite, as well. He sa id the defe ndant and the de fenda nt’s girlfriend Sama ntha ar

rived a round dusk and s t ay ed for about two or thre e hours. He said the de fe nd a nt w a s n ot h is u su a l se lf a nd“ ha d a n a tti tud e ” a ndwa s “ ou tgo ing abo ut e ve ry thi ng .” He sa id that the def

endant ha d wre cked his c ar by sliding off a bank and that the defe ndant and Samantha

wer e brought to the c ampsite by someone who ga ve them a ride. He said the def endant’ s car

was later r emoved by a tow truck and brought to the campsite. He said the def endant a nd the victim were talking, hugging, and interac ting normally. He said that people we re d rinking alcohol but that he
was not one of them. He acknow ledged having said in his pre liminary hearing testimony t hat he ha d been drinking but explained that he misunderstood the que stion. He said the victim was intoxicate d and that the defendant was drinking but not intoxicated. He said the victim left the campsite a bout fiftee n minutes before the def endant.

Mr . St a me y te sti fi e d th a t a sh ort ti me la te r, he , h is f

a the r, a nd Do nn ie Pa yn e le ft to p ur c ha se beer and ciga rettes a t a Golden Ga llon store. He said that as t hey came around a curve, he saw the de fe nd a nt p ark e d o n th e sid e of the ro a d a ndthe vic tim ’s c ar w ith ste a m c omi ng ou t of it. He sa id the re wa s d a ma ge to the re ar bu mpe r of the de fe nd a nt’ s c ar a ndthe muf fl e r w a s d ra gg ing . H e sa id that the victim spe d awa y and that the defe ndant pounded the top of his car, sc rea med, “I ’m going to kill t hat son-of- a-b-

--- ,” and f ollowed the victim.

Mr. Stamey t estified that he continued driving and ca me upon the victim and the de fenda nt

a sec ond time at a four- way stop. He said the defe ndant was pulling at the w indow and door of the victim’s car , picked the vic tim up out of the car, a nd slapped him with an open ha nd “no more than three times.” He sa id the victim’s head hit the bumper of one of the ca rs. He a lso de s cribe d the vic tim a s si tti ng on the gr ou nd ble e din g. He sa id he go t ou t of his c ar a nd tol d the de fe nd a nt no t to hit the victim anymor e. He said the defe ndant stated, “Somebody’s going to pay me for tha t g----

--
car , boy. ” H e s a id h e trie d to c a lm th e d e f e n d a n t. H e s a id h e n e v e r h e ar d th e d e f e n d a n t te ll the victim he was going to kill the victim.

Mr . St a me y te sti fi e d th a t he too k the vic tim fr om thi s lo c a tio n in the vic tim ’s c ar. He sa id that he wa nted to take the vic tim for medical a ttention. He descri b ed the victim as being in “ba d shape” with blood coming from his ears, mouth, and nose , his eyes swollen, a nd making a gurgling-3-

sound. He said the vic tim was tr y i n g t o t el l him to go to t he victim’s daughter ’s house, but Mr. Stamey did not know where it was. He said that the victim’s c ar was not r unning w ell and that he de c ide d to sto p a t th e ho us e of W a nd a Ste wa rt , th e de fe nd a nt’ s mothe r, to us e the te le ph on e to c a ll fo r a n a mbu la nc e

. He sa id, ho we ve r, he wa s n ot p e rm itt e d to us e Mr s. Ste wa rt ’s te le ph on e . H e sa id that while he wa s at the door trying to ge t pe rmission to use the telephone, the de fenda nt drove up,

remove d the victim from the ca r, and be gan “r oughing him up again.”

Mr. Stamey testified that the de fenda nt’s fathe r Paul intervene d to get the def endant a way from the victim. He sa id that after the def endant be came calm, the defe ndant t ook the vi ctim to the porch and sponged hi s fac e. He said that he was scar ed bec ause he was on pa role a nd in Tennesse e illegally, and that he wanted the defe ndant and Samantha to drop hi m at his parents’ c ampsite and take the vic tim for medical c are . He sa id that they, howeve r, did not rea lize the se verity of the victim’s situation. He sa id that when they r eac hed the c ampsite, the victim’s breathing was shallow, he starte d gurgling more, and his e yes we re r olled to the back of his head. He sa id they got him out of the c ar a n d trie d to g iv e h im mo u th

- to

- mo u th r e s u s c it a ti o n

. H e s a id th a t h e w a s unawa re of
anyone at the campsite ha ving a cellular telephone. He said that the victim was plac ed bac k into the

c ar a nd that Sa ma nth a dr ov e a way wi th him

. He sa id the de fe nd a nt, wh o a t f ir st p la nn e d to re ma in at the ca mpsite, ran af

t er the ca r to go with Samantha and the victim. He said that bef ore the defe ndant left, the de fenda nt said, “Oh, Go d

, what can I do? What a m I gonna do? ” He said the defe ndant also made a stateme nt that he “didn’t give a f-- - if [the victim] died or not.”

Mr . St a me y te sti fi e d that his pa re nts too k him ho me that e ve nin g. He sa id the y d id n ot c a ll
to s ee wh et her the victim had been ta ken to the hospital and a ssumed that the def endant a nd Samantha had done so.
Donnie Payne te stified that h i s wi fe was Brad Stamey’s sister. He sa id that he was at the campsit e o n t h e n i g h t of July 20 when the de fenda nt and the victim wer e pre sent. He sa id the defe ndant was doing “ cra zy things” and acting as if he wer e on drugs. He said the def endant wa s trying to pick fights.

Mr. Payne testified tha t the defe ndant left the ca m p g ro u n d about 7:30 p.m. and that the victim left betwee n thirty minut es and a n hour later. He said he went that evening with the group to buy cigare ttes. He testified that he drove and denied that he was trying to protect Brad Stamey by saying that he drove . He sa id that on the drive, he saw headlights from two ca rs coming towar d him and that he pulled to the side of the road. He said one of the cars was the victim’s, which the defe ndant was “butting the side of

. . . trying to knoc k [the victim] off the road

. ” H e s ai d t he de fe nd a nt d ra gg e d th e vic tim ou t of his ca r by his ha ir a nd be ga n be a tin g h im w ith his fi sts . H e sa id he saw the defe ndant land at least ten to twe nty punches to the victim’s hea d, neck, a nd chest. He

sa id the vic tim e nd e d up on the gr ou nd

, a nd he sa id h e sa w the de fe nd a nt kic k a ndsto mp the vic tim a time or two on the c hest and ram the victim’s head into a car bumper . He sa id that he neve r saw the victim try to hit t he def endant or try to block the bl ows and that the victim was trying to get a way fr om the de fe nd a nt. He sa id t he def e nd a nt w a s ma d, c ur se d, ma de state me nts abo ut the vic tim hitting hi s car , and told the victim he would kill him. He describe d the victim as large but old and unable to hold his own aga inst the defenda nt. He said that the vic tim was rende red he lpless and that the victim’s fac e wa s cover ed in blood. He sa id Brad S tamey had intervene d during the beating but-4-

that the def

endant slung Mr. Stamey a way. He said that this was the only alterc ation he saw betwee n the def endant a nd the victim and that he ha d not seen the de fenda nt beating on the roof of a c ar.

Mr . Pa yn e te sti fi e d tha t two or thr e e pe op le staye d w ith the vic tim a ft e r the be a tin g. He sa id he re turne d to the c a mps ite . H e sa id h e didno t se e the de fe nd a nt tha t ni gh t a t th e c a mps ite . H e sa id “they” brought the victim to the campsite and dumped him on the ground the next day. He sa id the victim was d ea d

. He sa id he did not see the de fenda nt when the victim was br ought back to the campsite.

Mr . Pa yn e a c kn ow le dg e d th a t he ha d p oo r v isi on in o ne of his e ye s si nc e ha vin g a str ok e in July 2004. He also ac knowledged tha t he could not se e well at night. He said he ha d been a friend of the victim’s for

forty to forty- five ye ars.

Mr . Pa yn e te sti fi e d th a t he wa s not dr inking on the da y of the inc ide nt but that he c ou ld s me ll alcohol on Brad Stamey, a lthough he never saw Mr. St am ey d ri n k i n g. He sa id he did not think Kenne th Stamey was drinking.

Kenne th Stamey testified that the def endant wa s his step-grandso nw h o m h e h a d h e lp e d r aise. He sa id that on July 20, he and his wife wer e ca mping with several other people on Sand Cre ek. He said the def

endant arrived around 3:00 or 4: 00 p.m. with Samantha. He said that the def endant ha d driven into a ditch but that someone with a tow truck ha d pulled the ca r out of the ditch. He said the defe ndant was drinking beer but wa s not vio l en t

. He also said the victim was drinking and wa s in t o x i cate d. He sa id there w as no disagre ement betwe en the victim and the de fenda nt at the campsite. He said the def endant lef t before he lef

t with Brad S tamey and Donnie Payne to ge t beer

. He sa id that he and his son did the driving and that Mr. Payne did not drive on this trip.

Mr. Stamey testified that on the way, they s aw the defe ndant beating on his car bec ause the victim had run into the defe ndant’s ca r, al though they did not see the wr eck ha ppen. He said the def en d an t said, “I’ ll beat the h-- - out of that son-of -a- b--- -.” H e said that they f ollowed the defe ndant and the vic tim and tha t at a nother location, Brad Stamey jumped out of the ca r and trie d
to ta lk the defe ndant out of hitting the victim, to no avail. He said that the defe ndant wa s mad beca use his car

had bee n hit and that he was hitting the victim and saying he did not car e if he killed the victim. He said that the vi ctim fell t o the ground while t he defenda nt was assaulting him and that the vic tim tr ie d to ge t up

. He sa id he did no t se e the de fe nd a nt kic k th e vic tim . H e sa id tha t he did

no t se e the de fe nd a nt r a m th e vic tim ’s he a d in to a c ar b ump e r b ut tha t he he arda lou d thu d. He sa id that afte r the a ltercation was over, the defe ndant and Brad had to put the victim into the victim’s ca r, that Brad staye d behind to take the vic tim for medical a ssistance, a nd that the rest of his group we nt back to the c ampsite.

Mr . St a me y te sti fi e d th a t late r that eve nin g, the de fe nd a nt r e turne d to the c a mpg ro un d w ith the victim. He described the victim a s “kind of blue a round the mouth” but not looking “like he wa s beat or to pieces or

nothing, or beat up ba d or nothing.” He said, howeve r, the victim was unconscious and br eathing “r eal low.” He said his wife a ttempted to give the victim CP R but was

unsucce ssful. He also said he thought that Samantha was going to take the victim to the hospital but that he un de rs too d s he ha d n ot. He sa id the de fe nd a nt w a s u ps e t a ndc ry ing a ndwa nte d the vic tim-5-

to be taken to the hospital but also made the statement, “They’ll give m e 20 yea rs.” He said no one at the ca mpsite had a c ellular tele phone. He said he lef t to take his son back to Ge orgia.

Haz el “Sue” Stamey testified that the def endant wa s her gr andson and tha t Brad Stamey and Kenne t h S t am ey were her son and husband, r espec tively. She said she was c amping on July 20, 2002. She said the def

endant visited them at the ca mpsite and was drinking beer a nd acting as if he

wer e “on pills.” She said he was “ happy-go- lucky.” She said the defe ndant left the c ampsite about 3:00 or 4:00 p.m. She describe d the victim a s “drunk” by this point and said he left thirty minutes to an hour a fter the defe ndant, af ter saying he was going to visit his daughter

. Ms. Stamey testified that later tha t evening, the de fenda nt, Samantha, and Bra d Stamey brought the victim to the campsite. She said that she attempted CPR but that the victim n ee d ed

me dic a l tr e a tme nt. She sa id tha t th e vic tim ’s fa c e wa s b lue bu t th a t he wa s not b le e din g. She did not know whether

the victim was bre athing. She said that she wa s unable to help the victim, t hat she

was sca red, a nd that she said the victim ne eded to go to the hospital. She said she made a statement to the defe ndant, “You ought to be a shamed,” and that the de fenda nt responded that he did not give a d-- -.
Ms. Stamey testified that it wa s possible the defe ndant was upset and c rying afte r he r eturne d to the campsite with the victim. Howe ver, she said she did not rec all that having happe ned.

David Guy testified that he was the a ssistant special age nt in charge of the Ea st Tennessee District of the Te nnessee Bureau of Investigation (TBI) and that he was called to a crime sc ene at

a re sidence on July 21 at 12:40 a.m. He said that when he arrived, the re w as a pe rson lying in the back se at of a

Corsica c ar a nd that the person ha d experience d extre me blunt trauma fr om the neck
to the top of

the he a d. Us ing ph oto gr aph ic e xh ibi ts, Ag e nt G uy de sc ri be d th e vic tim ’s inj ur ie s.

Agent Guy test i fi ed t h at due to the size of the c rime sce ne and the number of items of

e vid e nc e he sa w, he c a lle d th e vio le nt c ri me re sp on se te a m to pr oc e ss the re sid e nti a l sc e ne

. He sa id the violent crime r espon s e t eam a lso processe d the two roa dside scene s but did not process the campsite. He said that at one of t he roadside s cene s, parts of vehicles we re r ecove red a nd that at the other, c oins, blood, and a shoe we re f ound. He sa id a shoe whic h matched the one found on the

ro a ds ide wa s r e c ov e re d on the fr on t de c k a t th e re sid e nti a l sc e ne . H e sa id h e we nt t o th e c a mps ite and re cover ed a bla nket from Mrs. Stamey.

Us ing a ph oto gr aph

, Ag e nt Gu y de sc ri be d da ma ge to a gr a y Ol ds mob ile

, which he s aid belonged to the victim. He sa id that the dam ag e consi sted of a br oken taillight lens and that the piece s we r e o n th e g r o u n d b e n e a thth e c ar in th e p h o to g r ap h

. H e s a id th is me a n t th e d a ma ge

occur red at that location. He a lso describe d damage to the front of the car , consisting of old damage for whic h there was no de bris at the sce ne, and ne w damage with parts at the sc ene.

Agent Guy a lso identified a photog ra p h o f a red Neon, w hich he sa id belonged to the defe ndant. He sa id the Neon did not have front-e nd damage

. He said another photograph de picted slight damage to the re ar bumpe r of the N eon.-6-

Agent Guy testified that there w ere other ve hicles at the residential crime scene. He said that one of the m, a

r e d Ch e v r o le t, h a d d a ma g e w h ic h ap p e ar e d to h a v e o c c u rr e d a t th a t l o c a ti o n

. He ba se d th is c on c lus ionon de br is tha t w a s p re se nt.

Agent Guy testified that EMS wor kers had been on the scene befor e he a rrived. H e did not know what pr ocedur es they pe rformed on the victim.

Agent Guy testified that in his experienc e, it was possible for two car s to collide and the damage to one to be much gr eate r than to the other . He of fer ed his opinion t hat it was possible the vic tim ’s c ar h it the ba c k o f the de fe nd a nt’ s c ar d e sp ite the va ry ing a mou nt o f d a ma ge to the tw o c ars

.

TBI Ag e nt Shel ly Be tt s tes tif ie d th a t sh e wa s a

fo re ns ic sc ie nti st a ssi gn e d to the fi re arm s identification unit of the TBI Laboratory and wa s a member of the violent crime response team. She

wa s a llo we d to te sti fy a s a n e xp e rt in f or e ns ic s. She state d th a t sh e we nt t o th e re sid ent ial cr ime

scene

. She said there wer e four vehicles, one of which had a transmission fluid trail leading from the end of the drivew ay. She said ther e we re nume rous broke n car piece s around the car s and blood spatter on the gr avel. She r ep o rted that ther e appe are d to be a dr ag mar k from behind a

red N eon to a maroon Corsica

and that the victim’s body wa s in the back se at of the Corsica

. Agent B etts identified sketches of t he scene which ref lected the location wher e evide nce w as

rec overe d. She also identified phot ographs taken at the sce ne. Using these e xhibits, which refle cted the sce ne b o th inside and outside the re sidence , she testified a bout the location of the e videntiary items collected and identified t hem. She noted t hat broken piece s of red plastic wer e on the ground behind the Oldsmobile and that what appea red to be blood was in numerous plac es, both inside and outside the house.

Hu nte r G re e ne , a

Spe c ia l A ge nt F or e ns ic Sc ie nti st w ith th e TBI , te sti fi e d a s a n e xp e rt wi tne ss in serology and late nt print examination. He stated that he compared known blood samples from the def en d an t an d t he victim with evidence collecte d. He sa id that blood that DNA testing could not exclude as having c ome from the victim, but that was also not the defe ndant’s blood, was f ound on

a pair of shorts and sections of linoleum that were remove d from the r esidenc e. He determined that the vic tim ’s DN A wa s pre se nt in blo od on pa pe r tow e ls co lle c te d fr om a tra sh c a n in the liv ing ro om. He sa id tha t ba se d u po n it s p a tte rn on the pa pe r t ow e ls, the blo odapp e are d to ha ve be e n w ipe d o nto the tow e ls. He sa id the vic tim ’s blo od was also on a t- sh ir t f ro m a tr a sh c a n inthe laun dry r oo m. He de termined through DN A testing that the victim’s blood was also collec ted from the dec k and the ground be tween the Oldsmobile and the Ne on and fr om t he upholstery in the ba ck seat of the Ol ds mob ile

. He sa id hum a n bloo d wa s pre se nt on a sa nd a l f ro m th e laun dry r oo m f

loo r, a n a thl e tic sho e f r o m th e la

u n d r y r o o m, a

s h o e f r o m th e d e c k

o f th e r e s id e n c e , a n d tw o s h o e s f r o m W a nda Stewart, but he did not perf orm testing to identify the sourc e due to the sma ll quantity of blood. He determined that hum an b l o o d h ad been collec ted from the door are a of the home but that DNA testing was inconclusive. For a nother sample c ollected f rom the door area

, he determined that the sample conta ined blood and the victim’s DNA

. He sa id test results reve aled that human D NA and blood were on a mop from the kitche n, but he said he wa s not able to get a D NA prof ile due to the

con d it io n o f th e s a mp le

. H e s a id h u ma n b lo o d w a s a ls o p r e s e n t o n th e b a c k b u mpe r of the Oldsmobile.-7-

Agent Gr eene testified t hat a sample take n from one of the roa dside crime sc enes c ontained blood and the victim’s DNA. He said a blanket from the campsite contained hum an blood but that he wa s unable to identify any D NA.

Agent David Guy was rec alled by the State and testified that he f irst saw the de fenda nt on the af ternoon of July 21, the da y afte r he r esponded to the c rim e s ce n e. He sa id he looked for injuries on the def

endant a nd saw none

. He said the def endant r eporte d that his big toe was sore but that the toe did not appea r to be injured. H e said the de fenda nt did not appear to be impaired. He said he also observe d Samantha Bivens, Bra d Stamey, and Kenne th Stamey, none of whom appe are d to h a ve a ny inj ur ie s.

Dr. Amy McMa ster testified a s an expe rt in fore nsic pathology about her autopsy of the victim. She said the victim appea red olde r than the r eporte d age of sixty-five and ha d numerous and sig nif ic a nt i nju ri e s to his he a d a ndne c k, inc lud ing c on tus ion s, abr a sio ns , a ndla c e ratio ns . Sh e a lso observe d bleeding of the brain. She said that due to the number and exte nt of the injuries, significant fo rc e fr om m ult ipl e blo ws we re inv olv e d. She sa id the vic tim a lso ha d f

racture s of th e thy ro id

cartilage and hyoid bone, both struc tures in the nec k, which could be cause d by strangulation or significant blunt trauma. S he said the t hyroid cartilage fra cture could be c aused f rom stomping the neck a nd that gurgling could be c onsistent with a person having t his type of injury. Dr. McMa ster stated that the victim had multiple bruises on his c hest and back, multipl e linear and round sc ratc hes on his back a nd left hip, and a brush burn type a

brasion on his bac k

. She said the bruises on the vic tim ’s tor so we re no t c on sis te nt wi th re su sc itatio n e ff orts. She sa id that th e vic tim ’s arm s, le gs , a ndri gh t f

oo t w e re br

uis e d a ndthat th e br

uis e s w e re c on sis te nt w ith sto mpi ng inj ur ie s.

Dr. McM as t er t es tified that a sample of the victim’s blood showed a .212 pe rce nt ethanol level. A se cond sample taken fr om the victim’s subdural hematoma showed a .307 perc ent ethanol level. She said he had salicyla te, also known a s aspirin, in his blood, as well. In Dr. Mc Master’ s op ini on , th e hig he r su bd ur a l e tha no l le ve l me a nt that th e vic tim pr ob ably ha d n ot d ie d im me diate ly afte r his head injury. She said that the victim ha d sever al potentially fatal injuries whic h combined
to c a us e his de a th. She sa id the c a us e of de a th wa s b lun t f or c e tr a uma . Sh e a c kn ow le dg e d th a t it was possible for a per son to be bruised fr om exce ssively force ful resusc itation efforts. She excluded alcohol as a

fac tor in the victim’s death.

The defe ndant did not offe r any evidenc e. The jury found the defe ndant guilty of first degre e preme ditated murder , first degre e fe lony murder in the perpe tration of kidnapping, kidnapping, and tampering with evide nce. T he trial c ourt imposed a life se ntence for the mur der c ounts, eight years

a s a Ra ng e II of

fe nd e r f or kid na pp ing , a nde igh t ye ars a s a Ra ng e II o ff e nd e r f or ta mpe ri ng wi th

e vid e nc e . T he e igh t- ye ar s e nte nc e s we re imp os e d c on c ur re ntl y w ithe a c h o the r b ut c on se c uti ve ly to the life sentenc e, yielding an e ffe ctive sente nce of life plus eight year s.

I

On appe al, the defe ndant raises two challenge s to the sufficienc y of the c onvicting evidence

. He argue s that the proof was insuffic ient to support the convictions of both kidnapping and f elony murder in the pe rpetration of kidnapping. He contends that the evidenc e fa ils to demonstrate that-8-

he moved the vic tim more than minimally, as was incidental to his assault of the victim, and that as

a re su lt, do ub le je op ard y p re ve nts him fr om b e ing c on vic te d o f the kid na pp ing -relate d o ff

e ns e s. With rega rd t o the felony murder conviction, the defendant a rgues a lternatively that e ven if this court holds that the evidenc e wa s sufficient to support the kidnapping c onviction, there is no evide nce the de fe nd a nt f

or me d th e int e nt to c omm it kid na pp ing be fo re or

a t th e tim e of

his a ssa ult on the vic tim

. The State a

rgues that the e vidence is sufficient and that double jeopar dy is not offende d by the

c on vic tio ns

. A. Kidnapping

Ou r s ta nd ardof

re vie w w he n th e su ffici ency of th e e vid e nc e is q ue sti on e d o n a pp e a l is “whe ther, a fter vie wing the evidenc e in the light most fa vorable to the prosec ution, any rational trier of fa ct could have found the essential ele ments of the crime beyond a r easona ble doubt.” Jac kson v. Virginia, 443 U.S. 307, 319 (1979). W e do not r ewe igh the evidenc e but pr esume that the jury ha s r e so lve d a ll c on fl ic ts i n th e te sti mon y a nddr a wn a ll r e a so na ble inf e re nc e s f ro m th e e vid e nc e in favor of the S tate. See S tate v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984) ; State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) . Any questions about the cr edibility of the witnesses wer e re solved by the jury. See State v. Bland, 958 S.W.2d 651, 659 ( Tenn. 1997).

As rele vant her e, “[ k]idnapping is false imprisonment .

. . [u]nde r circ umstances e xposing the ot her per so n to su bs ta nti a l r isk of bo dil y in jury[ .] ” T. C.A . § 39 -1 3- 30 3( a )( 1) (2 00 6) . Fa lse imprisonment is t he knowing and unla wful rem o v al o r co nfinement of a person so a s to interfer e substantially with the person’s liberty. Id., § 39- 13-302.

Th e de fe nd a nt’ s a lle ga tio n in th is c a se is tha t th e e vid e nc e vie we d in the lig ht m os t f a vo ra ble
to the Sta te do e s not sho w tha t the de fe nd a nt c omm itt e d a se pa rate kid na pp ing a sid e fr om h is a ssa

ult

nece ssary to commi t the hom icide. Our supreme court has said that sepa rate offe nses of kidnapping and anothe r off

ense ma y viola t e d u e p ro cess if the kidnapping was e ssentially incidental to the commission of the other off ense. State v. A nthony, 817 S.W.2d 299 (Tenn. 1991) . In dete rmining whether due proce ss a llows se parate convictions, a c ourt must consider first whe ther the move ment or conf inement i n v o l ved in the kidnapping “w as beyond that nece ssary to consummate the

acc ompanying crime.” State v. Richardson, 251 S.W.3d 438, 442 (Tenn. 2008); see St ate v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997) . If so, the co u rt m ust then examine “ whether the additional
movement or c onfinement: (1) preve nted the v i ct i m fr om summoni ng help; (2) lesse ned the defen d an t ’s risk of dete ction; or (3) c reated a significa nt danger or incre ased the victim’s risk of harm.” Dixon, 957 S.W.2d at 535; see Richa rdson, 251 S.W.3d at 443.

We f irst no t e An t h o n y ’s due pr ocess a nalysis was dee med to apply only when the

c omm iss ion of

the pr ima ry of fe ns e ne c e ssa

ri ly i nv olv e d a kid na

pp ing un de r Te nn e sse e la w. In thi s

re ga rd , w e c on c lud e that th e c omm iss ion of pr e me dit a te d o r f

e lon y mu rd e r d oe s n ot n e c e ssa ri ly include a kidna

pping.

Relative to this case, the evidenc e shows the following acts of movement or confine ment of the victim by the defe ndant: (1) between the first and second roadside scene s, the defendant hit the victim’s car

in an ef fort to forc e him to stop, (2) afte r forc ing the victim to stop, the defe ndant pulled-9-

the vic tim fr om his c ar a ndsa va ge ly b e a t hi m in to u nc on sc iou sn e ss a ndc on tin ue d a ssa ult ing him

a ft e r h e wa s r e nd e re d u nc on sc iou s, (3 ) at th e re sid e nti a l sce ne , he int e rf e re d in Bra d St a me y’ s e ff

orts to ge t th e v ic ti m me d ic a l a tt e n ti o n b y r e mo v in g th e v ic ti m f r o m th e c ar a n d r e s u mi n g his violent assault on him, despite the fa ct that the victim wa s alre ady in “bad sha pe,” w as blee ding, swollen, and making gurgling sounds, (4) the defe ndant an d S am antha Bi vens took the victim and Brad Stamey to the campsite, despite the fact that the victim was critically wounded and ne eded me dical

car e, rather than c alling an ambulanc e fr om the Stewart residence or t aking hi m direc tly to a medica l fac ility, and (5) aft er h av i n g m ad e the state ment that he did not car e whe ther the vic tim died, the defe ndant ra n afte r Ms. Bivens when she was leaving the campgr ound to ta ke the victim f

or medica l

car e, got in the car, and they t ook the vi ctim back to the Stewa rt reside nce. V iewed in their totality, we hold that these actions co n s t itute movement or conf inement which wa s beyond that nec essary for the de fenda nt to consummate the homicide.

Under the sec ond part of the Dixon inquiry, the defe ndant’s actions, particula rly his taking the vic tim fr om the Ste wa

rt re sid e nc e to the mou nta int op c a mps ite a ndtakin g h im f ro m th e c a mps ite back to th e S t ew ar t residenc e, pre vented the vic tim from summoni ng help. The e vidence demonstrated tha t the victim was in grave condition from the defenda nt’s beatings, yet the de fenda nt and Ms. Bivens did not seek medica l car e for the victim but inst ead took him to a re mote location in order to dr op off Bra d Stamey. Ms. Bivens then left with the victim, stil l alive but in poor

c on dit ion , to ob ta in m e dic a l c are . H ow e ve r, the de fe nd a nt int e rv e ne d, a nd the y r e turne d in ste a d to the Stewart residenc e, whe re the victim was fo u n d d ea d b y the authorities. The defe ndant’s interfe renc e with the ef

forts of Bra d Stamey and S amantha Bivens to obtain medical a ssistance for the victim lessened the de fenda nt’s risk of dete ction. The de fenda nt cre ated a significant dange r and inc re a se d th e vic tim ’s ri sk of ha rm by re mov ing him fr om the c ar a ndc omm itt ing a se c on d a ssa

ult at the Stewart residenc e whe n Mr. Stamey was a ttempting to obt ain medica l car e for the victim, by taking the victim to the ca mpsite, and by interfe ring with Ms. Bivens’ effort to take the victim for medical as s istance a nd instead re turning the victim to the St ewa rt reside nce. W e hold that due
proce ss does not prohibit dual convictions of kidnapping and f irst degre e murde r.

In addition, we hold that the e vidence is sufficient to support the kidnapping convic tion. Vi ew ed i n the light most favor able to the State, the e vidence demonstrates tha t the defe ndant kn ow ing ly re mov e d a nd c on fi ne d the vic tim in a ma nn e r tha t su bs ta nti a lly int e rf e re d w ith his lib e rt y and expose d the victim to substantial risk of bodily i njury.

B. Felony Murder in Perpe tration of Kidnapping

Th e de fe nd a nt a

rg ue s f ir st, wi th respect to the f

e lon y mu rd e r c on vic tio n, that du e pr oc e ss pr e v e n t s t h e k i d n ap p i n g c o n v i c t i o n , a n d t h e r e f o r e p r e v e n t s a c o n v i c t i o n o f f e l o n y m u r d e r

in
pe rp e tr a tio n o f k idn app ing , a s w e ll. For the re a so ns state d a

bo ve , th is a

rg ume nt i s w ith ou t me ri t.

The de f e ndant ar gues alternatively that the evide nce doe s not show that the defe ndant forme d the int e nt t o c omm it the kid na pp ing be fo re or c on c ur

re ntl y w ith the a dmi nis tr a tio n o f the fata l bl ow s. His argument is base d upon State v. Thac ker, in whic h our supre me court observed-10- The fe lony murder r

ule applies whe n the killing is “done in pur suance of the un l aw fu l ac t , and not collater al to it.” Farmer v. State, 201 Tenn. 107, 296 S.W.2d 879, 883 (1956) . “The killing m ust have ha d an intimate re lation a nd close c onnection with the fe lony . . . and not be sepa rate , distinct, and independe nt f rom it.” Id. (quoting Wha rton on Homicide, § 126 (3r d ed.) ). The killi ng “may pr ece de, coinc ide with, or follow the felony and still be considere d as occur ring ‘in the
pe rp e tr a tio n o f’ the fe lon y o ff e ns e , s o lo ng a s the re is a c on ne c tio n in
t ime, place , and continuity of ac tion.” State v. Buggs, 995 S.W.2d 102, 106 (Tenn. 1999) . Neve rth el ess, t he “intent to commit the underlying fe lony must exist prior to or con cu rr en t with the commission of the act c ausing t h e death of the victim.” Id. at 107. “[A ] jury may r easona bly i n fer from a de fenda nt’s actions imm e d i a t e l y a f

t e r a k i l l i n g t h a t t h e d e f e n d a n t h a d t h e i n t e n t to commit the felony prior to, or c oncurr ent with, the ki l l ing.” Id. a t 108.

164 S.W.3d 208, 223 (Tenn. 2005). In the prese nt c ase, the defe ndant’s re peate d acts of r estraining or confining the defe ndant in order to commit two assaults at two locations and then kee ping the victim under his control and a way f rom medica l assistance a fter ha ving administered these sever e be a tin gs are e vid e nc e fr om w hic h a ratio na l ju ry c ou ld inf

e r tha t th e de fe nd a nt f

or me d th e int e nt t o commit kidnapping before or during the homicide. We hold that the evidence is suffic ient to support the fe lony murder c onviction.

II

The de fenda nt argue s that the trial court erre d in allowing Detec tive Price to testify that the defe ndant was taken into custody on outstanding war rants. He contends that the evidenc e invited the jury to specula te about the subjec t of the outstanding war rants, suggested the defe ndant’s involvement in other criminal activity, and violated the non-te stifying defenda nt’s right to a fair tr ial by admitting evidence of the def endant’ s criminal history. The State a rgues that the de fenda nt

wa ive d th is i ssu e by fa ili ng to r a ise it i n h is m oti on fo r n e w t ri a l.

The recor d ref

lects that although the de fenda nt objected at the trial, he did not raise the issue in the moti o n fo r n ew tria l. Appellate c onsideration of the issue is waived pursua nt to Tennessee Rule of Appellate Procedur e 3(e ). Thus, the de fenda nt is not entit led to relief unless the issue rises to the level of pla in error

. See T.R.A.P

. 36(a) ; Tenn. R. Crim. P. 52(b); State v. Smit h, 24 S.W.3d 27 4, 28 2 ( Te nn . 2 00 0) . I n th is r e ga rd , w e c on c lud e tha

t pl a in e rr or

do e s n ot e xis t.

Th e de fe nd a nt h a s n ot i de nti fi e d a c le ar a ndun e qu ivo c a l rule that ha s b e e n b re a c he d. W hil e he i s c o rr e c t th a t a

d e f e n d a n t i s e n ti tl e d to a

f a ir tria l, h e ar g u e s o n ly g e n e r a ll y th a t th e jury’s knowl edge of

his outstanding warra nts prejudiced him bec ause it implied a criminal hist ory. Howeve r, there was no e vidence of the na ture of the char ges, and me ntion of the war rants wa s made only brief

ly when De tective Price described what wa s done whe n the authorities ar rived a t the Stewart re sidence

. The defenda nt did not employ an identit y defe nse at trial, suc h that information-11-

that he had a

criminal past might be misused by the jury to infer his identity as the perpe trator of the
prese nt c rimes. Consideration of this issue is not nece ssary to do substantial just ice. The defe ndant is not entitl ed to plain er

ror r elief.

In consider ation of t he foregoing and the record as a whole, the judgments of the trial court

are aff irmed.

___________________________________ JOSEPH M. TIPTON, PRES IDIN G JUDGE