# FILED
July 31, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE TENNESSEE COURT OF C RIMINAL APPE ALS

AT NASHVILLE JUNE 1994 SESSI ON
STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9401- CR-00029 ) v. ) Davidson C ounty ) MARUJAPAQUITA COLEMAN, ) Honorable Ann Lacy Johns, J udge ) Appellant. ) (Second Degree Murder) )
For the Appell ant : For the Appell ee : Karl Dean Charles W. Burson Distric t Public Defender Attorney Gen eral of Tennessee and and John D. Wiethe Eugene Honea Cynthia Burns Assistant Att orney Gener al Assistant Public Defende rs 450 James Roberts on Parkway 1202 Stahlman Build ing Nashvil le, TN 37243-0493 Nashvil le, TN 37201 Victor S. J ohnson, III Distric t Attorney General and Roger Moore Don Himmelburg Assistant D istrict A

ttorneys G eneral W ashington Square 222 2nd Avenue N orth Nashvil le, TN 37201-1649

OPINION FILE D: ____________________
AFFIRMED PER CURIAM

O P I N I O N2 The defendant, Maruja Pa quita Cole man, appeals as of ri ght from her judgment of conv iction in th e Criminal Court of Dav idson County for second degree murder, a Cla ss A felony. She was se ntenced to twenty-five years i n the custody of the Department of Corr

ection as a Ra nge I, standar d offender to be served consecutively to a sentence for w hich she had been on parole. In th is appeal as of r ight, the defendant presents the foll owing i ssues:

(1) Is the evi dence suf fi cient to suppor t her convi ction for second degree murder? (2) Did the trial court properly admit into evidence statements of the deceased under the dyingdeclaration exception to the hearsay r ule? (3) Did the trial court err in impos ing the maximum sentence ? W e hold that the evidence presen ted at trial is sufficient to susta in the defenda nt's convicti on for second degr ee murder and that no error ex ists.

The facts surroundi ng this offense inv olve an inc ident in the ear ly morning hours of Septem ber 2, 1992, in which Sheila Annette Holm an received second and third degree burns

that covered her upper tor so. Her injuries eventually pr oved fatal and she died ten days later. At first, both Ms. Holman and the defend ant said that the fire started as they

tried to pour

gasoline i nto Ms. Hol man's car. Lat er, both acknow ledged that they had q uarreled and that, during a strugg le, Ms. Hol man was doused with gasoline. The defen dant was arrested for aggravated assault, but af ter Ms. Holman's death, she was indicted for secon d degree murder.

Testimony at tr ial revealed that on the mor ning of September 2, 1992, Ed Jones, the v ictim’s g randfather, awakened at about four o’ clock. He thought he heard a dog barking and went to look out into his yard. W hen he saw fires burning in his granddaughter’s front yar d, he shouted to hi s wife, Pear l, to call the fire department. As1 Sheil a Holman grew up i n her gr andparent s’ home and she consi dered t hem to be her par ents. 3 Mrs. Jone s teleph oned, Mr. Jones watched t he victim a nd the d efen dant walk t hrough the shrubbery

that separated t he two proper ties and come to w here he was waitingon the back porch. W hen he saw that his granddaughter’s clothing was "all just strings" and "she was sooted and dirty and ragged ity," he as ked her what had happened to her. She told him that they had been putt ing gasol ine in the car buretor and it had exploded.
By the time M rs. Jones st epped onto the porch, the victi m was sit ting there and the defendant was standing next to her. She saw t hat her gran ddaughter had been badly bur ned and that her cl othing was "just melted to her skin." When her granddaughter

said, "Momma, M omma, I’m burning , I’m burning ," Mrs. Jones went back inside an d called 911. 1 Within moments the fire department, t he paramedics and the police ar rived. As the rescue s quad carri ed the vici tm to the wai ting ambulance, the defendant

asked her if s he wa nted th e defenda nt to come to t he hosp ital. The v icti m did not answer, but call ed "Come on. Momma, come on." Before leav ing in the ambulance, Mrs . Jones heard thedefendant say that she wanted to go to the V.A. Hospital because she had been bur ned as well

.

At the emergency room, Detective David Miller spoke with the victim. He described her

as in pain but lucid. He a dvised her that she wa s in "ver

y serious condition." She told him th at she and the def endant had been in a fight, a domestic argument, and that

when the defendant ha d thrown g asoline on her, she was eng ulfed in flames. The vi ctim said that the defendant was s moking a ci garette at th e time, but she did not know

whether th e defendant had flicked a lighter o r thrown the cigarette. The detective a sked her if "thi s was in tentional," and s he said yes . When he asked her if she wanted t o prosecute the d efendant, she said yes.4 Police at the s cene quickl y determined that the fire coul d not have sta rted the way the victi m and the defendant had first described i t. The hood on the automobile wa s closed, and t here was no sign of any

fire damage under

the hood or anywhere on or near the automobile. The g asoline can was sittingin the middle of the front yard. A patch of grass near the can was burned. Five smaller burnt patches were scattered about t he yard, but none were near the driveway w here the car w as parked. Both the front and the b ack doors to t he house were open, and the v ictim’s tw o sons were asl eep inside thei r bedroom. In th e livingroom, the police found empty liq uor and beer bottles and glasses hal f-filled wi th a clear l iquor. An empty, quar t beer bottle w

as fou nd si ttin g upri ght ne ar th e drive way.

When questioned, the defendant at first held to her ear lier stor y, but she became increasi ngly ner vous and soon admitted that she and the victi m had fabricated the earlier version. In her wr itten statement and in her testi mony at tri al, the defendant stated that she and th e victim had become acquainted at work and were lovers. After a long bout of dri nking and smok ing crack cocaine, the tw

o had argued. The defendant wanted to break off their affair, and th e victim became furious. According to the defendant, the vic

tim had chased her

out of the back door

and flung black

pepper in her face. W hen the defen dant ran around to the f ront of the house, she found the victim taking the t op off the gas can that was on the fron t porch. The two strugg led, and when the victi m grabbed the ca n away, gasoline s lopped on her. As the defendant turned to walk toward the car, she lit a cigarette. The victim followed her and asked her fo r a light. Wh en she turned around an d extended her hand toward the victim, the victim’s long thin bl ouse burst int o flames. The vic tim ran screaming around th e yard and th e defendant chased her. W hen the defen dant caught the victim, she knocked the victim to th e grou nd an d hel ped smot her t he f lame s with h er ha nds a nd bo dy. Th e two women then concocted the story they first

told and wa lked, hand in hand , to the5

grandparents ’ nearby ho me. Throughout, th e defendant maintained that they accidentally

spilled and i gnited the g asoline.

Mrs. Jones testified that dur ing the ten day s before the vi ctim died, she had visited her frequently. On three separate occa sions, Mrs. Jones asked the victim whether "that

woman (meaningthe defendant) had done th is to her." M rs. Jones testified that, eac h time, her g randdaughter h ad nodded her head as if to say yes.

Dr. Charles Harlan, the state’s medical examiner, prese nted the only medical testi mony at tri al. He found many second and thir

d degree burns

on the victim’ s body. Therewere als o burns on the front of the right l eg and on the post erior aspect of the leg s. The most seri ous burns were found on the back a nd front of the torso and to the arms. Dr. Harlan stated that the vi ctim had died of pneumoni a resulting from pulmonary ede ma and that, wi thin a reasonabl e degree of medical certainty , the burns caused Shei la Holman’s d eath.

The defendant testified in similar fashi on to the last statement that she gave poli ce relative to the inciden t being acci dental. She prov ed that she had second degree burns

to the four finger

s on her left hand, and to portions of her left arm.

I When the sufficiency of the ev idence is q uestioned on appeal, the standard of rev iew is "whether, after view ing the ev idence in the l ight most favorable to the prosecution , any

rational tr ier of fact could hav e found the essential elements of the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979). T his means that we may not reweigh the evidence, but must presume that the jury has resolved all conflicts in the testimony and drawn all6

reasonable inferen ces from the evi dence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).
The evidence presented at tria l is sufficient to support a conv iction for second degree murder beyond a reasonable doubt. Tennessee law defines second degree murder

as the unlaw

ful "knowingkillingof another." T.C.A. §§ 39-13-201 and -210(1). "A person acts k nowingl y wi th respect to a result of the per

son’s conduct when the person is aware that the conduct is reasonably certain to ca use the result ." T.C.A. § 39-11-302(b) . The jury heard evidence from which a rational tr ier of fact could find beyond a reas onable doubt that after a long arg ument in whi ch the vic tim chased the defendant out of the house and thr ew pepper i n her eyes, the defendant set fire to the victim k nowing t hat the vic tim’s death was reasonably certain to r

esult.

II The defendant complains about the admission i nto evidence of the victim’ s statements to D etective M iller and her grandmother at

the hospital. She contends that the statements are inad missible hear say, not q ualifying as dying declarations because the ev idence is in sufficient to establ ish that the v ictim was conscious of her impending death at the time she made t he statements. The st ate responds that her

consciousness

of impending death may be inferred from the character of the w

ounds and that, in this instance, the five photog raphs depicti ng the nature of the wou nds show that the requi rements of a dyi ng declarat ion are satisfied.

As a starting point, we will discuss the burden of proof in the trial court and the standard of appel late revi ew of the tri al court’s findings and con clusions. The trial cour t conducted a jur

y-out hear ing at the beg inning of the tr ial in order to determine7

the admissibil ity of the statements. After the hea ring, the t rial court found that based on the seriousness of the victim’s condition and the fact tha t the victim was lucid and able to assess her

condition, that

the requir

ements for a dyi ng declarat ion had been met.

At trial, t he burden was on the state as t he proponent of hearsay statements to justif y their admission as exceptions to the hearsay rule of exclusion, in this case as dyin g decl arat ions . To c arry th at bu rden , the stat e was o bliga ted t o pro ve to the trial court by a preponderance of the evidence the existence of the preliminary facts needed to show

that the statements

were dy ing declar

ations. See Stat e v. Stamper , 863 S.W .2d 404, 405-06 (Te nn. 1993) (preponderan ce of the evidence standard applie s to hearsay exception p reliminary

facts). Essent ially, this means that the trial court must find that it is more pr obable than not that the preliminar y facts ex ist. Once the trial court makes s uch a finding, t he evidence i s admissible.

For appellate review

of such trial court finding s by the preponderance of the evidence, the standard i s different. In State v. Odom , 928 S.W .2d 18 (Tenn. 1996 ), our supreme court was confronte d with findings of the trial court under a prepo nderance of the evidence standard result ing from a motion to suppress hear ing. It concluded that “a trial court’s finding s of fact in a suppre ssion hearingwill be upheld unless the evidence preponderates oth erwise.” Id. at 23. In so hol ding, it not ed that questi ons of witness credibili ty, the weight and value of evidence , and resoluti on of conflicts in the evidence are entrusted to th e trial cour t as the trie r of fact. Id. It also stat ed that the winningparty in the trial court was entitled on appeal to the “str ongest leg itimate vi ew of the evidence at the hearing as well as all reas onable and legi timate inferences that may be drawn from that evidence.” Id. Given the fact that the same preponderance stan dard of p roof appl ies to the t rial c ourt ’s fi ndin gs of preli mina ry fac ts in t his ca se, we believe that the same standa rd of review applies.2 Ha wk ins v. S tate , 220 Te nn. 3 83, 3 90, 4 17 S .W .2d 7 74, 7 77 (1 967 ); Cra wfo rd v. S tate , 197 Te nn 4 11, 4 15, 2 73 S .W .2d 6 89, 6 91 (1 954 ) (told b rothe r he w as d ying); He lton v. S tate , 195 Tenn. 36, 49, 2 55 S .W .2d 6 94, 6 99 (1 953 ) (told a unt s he w as d ying); Sta te v . Ke els , 753 S. W .2d 140, 144 (Tenn. Crim . App . 198 8) (told son he w as g oing to leav e him ); State v. Lunsford , 60 3 S .W .2d at 7 47 (to ld em erge ncy ro om pers onn el she was going to die); Floyd v . State , 596 S. W .2d 836, 838 (Tenn. Crim. App. 197 9) (told fam ily treatm ent w as u sele ss) ; W illi am s v. S tate , 542 S. W .2d 827, 832 (Tenn. Crim. App. 8 Rule 804(b)( 2), Tenn. R. Ev id., prov ides the circumstances that al low for the exceptio n to the hearsay rule that is

historical ly know n as a dyingdeclaration: StatementUnd erBelief of Impending D eath. In a prosecution for homicide, a statement made by the victim while believingthat the declar ant’s death was i mminent and concerning the cause or ci rcumstances of w hat the declarant believed to be impending deat h. The rationale for admi tting these statements is t hat the awareness of impending death is equiv alent to the sanc

tion of an oath. See Anthony v . State , 19 Tenn. 265, 278 (1838), cited in Beard v. St ate , 485 S.W.2d 882, 885 (Tenn. Crim. App . 1972); Stat e v. Lunsford , 603 S.W.2d 745, 746-47 (Tenn. Cri m. App. 1980). The r ule retains t he common law l imitations to the admission of dy ing declar ations. Tenn. R. Evid. 804(b)(2), Advisory

Committee Comments.

There are four

pre lim inar

y fa ctsto beproven for t he ad miss ion of a hearsay st atement as a dyi ng declarat ion: (1) the declarant must b e dead, (2) the statement must be admit ted only i n a homicide pro secution in w hich the declar ant is the victim, ( 3) the statement must concern the cause or circumstances of death, and (4) the declarant must h ave spoken or writte n the statement under the belief that death was imminent. Of the four, t he knowledg e of impending death provides the indicia of reliabili ty and trut h that justifies the admission of thestatement. See Neil P. C ohen, et al., Tennessee Law of Evidence , § 804(b)(2).1, at 599 (3d ed. 19 95).

Under Tennessee l aw, it i s not necessar y that the dec larant state unequivocally a bel ief that death is i mminent. Awareness of impending death has been inferred from the la nguage and con dition of the decl arant, 2 the facts and cir cumstances197 6) (told broth er an d bro ther’s friend , “Jim m ie, you k illed m e, you s hot m e.”); State v. Da rrell Fritts , No. 132 , Mo nroe Co unty, slip o p. at 4 ( Te nn. C rim . App . Sep t. 25, 19 92), app . dismissed (Tenn. Feb. 1, 1993) (told wife he was dying).

3 Stat e v. Branam , 604 S. W .2d 892, 894-95 ( Tenn. Cri m. App. 1980) ( strug gli ng to br eathe, jerk ing an d rolling s pas m odic ally, died with in m om ents ); Cra wfo rd v. S tate , 197 Tenn. at 415- 16, 273 S.W .2d a t 691 (intes tines p rotru ding from large wou nd in a bdo m en; d ied w ithin 45 m inutes ); State v. Muse , 63 7 S .W .2d 46 8, 4 70 (T en n. C rim . Ap p. 1 98 2) (int er m itten t br ea thin g, g laze d e yes , se m icon scio us) ; Kilbur n v. S tate , 509 S. W .2d 237, 238-39 ( Tenn. Cri m. App. 1973) ( severe per it onit is, blue fingernails, weakness ).

4 Floyd v . State , 596 S.W .2d a t 838 (patien t instinc tively awa re of im pen ding dea th); McD onald v. State , 542 S.W .2d 3 88, 3 89 (T enn . Crim . App . 197 6) (c han ce o f rec ove ry was nil); State v. Da rrell Fritts , slip op . at 5 (c hes t filled with blo od, d ifficult bre athing ); Stat e v. Isaac Ly dell Herron , Sh elb y Co un ty, slip op. at 5 (Tenn. C rim. App. Ap r. 10, 1985) (serious doub t that vi ctim wo uld reach hos pital alive).

5 Sta te v . Ke els , 753 S.W .2d a t 144 (17 h ours ); State v. Lunsford , 603 S.W .2d at 746 (39 days); Floyd v . State , 596 S.W .2d a t 839 (2 da ys); Mc Do nald v. State , 542 S.W .2d a t 389 (43 d ays); Kilburn v. State , 509 S.W .2d a t 239 (7 da ys); Stat e v. Isaac Ly dell Herron , sli p op. at 5 (3 days). 9 surroundingthe statement, 3 and medical test imony concer ning the ser iousness of the victim’ s condition. 4 The fact that a v ictim does not die shortly after making th e statement does not pr

eclude its admi ssion as a dy ing declar ation if the req uirements of the rule are s atisfied. 5

In this case, the most telling point is the large extent to which the victim’s body was

burned. Dr. Harlan’s report reflects that six ty-fivepercent of the v ictim’s body was inv olved. Al though the photog raphs show ing the v ictim ten days after the burns particular ly suppor

t the finding th at the vic tim’s hospita l statements to h er grandmother were dy ing declar

ations, they

also are pr

obative of the s evere ex tent of the burns suffered by the v ictim. In thi s respect, th ey support the trial court’s concl usion that the victim w as aware of her

impending death at the time she tal ked to Detecti ve Mill er. Under these ci rcumstances, we cannot say that the evi dence of record preponderates against the t rial court ’s findings that justify the conclusi on that the statements in issue are dyingdeclarations

.

III10 The defendant contends that t he trial cour t erred in i mposing the maximum sentence of twenty- five year s for a Range I , standard offender. Shestates that the trial court applie d enhancement factors ( 5), treatingthe victi m with exceptional cruelty, and (13)(B) , committing a felony w hile on parol e. See T.C.A. § 40-35- 114. She asserts that factor (5) does not apply and that the remaini ng factor does not justify t he sentence imposed.

Howeve r, the recor

d reflects that t he trial cour t actually found the followi ng enhancement f actors listed in T.C.A. § 40-35-114 to apply: (1) the defendant has a previous history of criminal conv ictions and beha vior, ( 5) the defendant treat ed the victim w ith excepti onal cruelty , (6) the v ictim’s i njuries were particul arly g reat, (8) t he defen dant

has a previ ous h ist ory of un wi lli ngn ess to c ompl y w ith the condi tion s of a sentence involving release into the community, (10) the defendant had no hesitation about committing a crime w here the ris k to human life was high, ( 13)(B) the felon y occurred w hile the defendant was on parole, and (16) the cr ime was commi tted under circumstances

under whi ch the potential for bodily injury to a victi m was great. The trial court found no mitigating f actors.

In this respe ct, although the state acknow ledges that fact ors (10) and (16) should not apply , given that murder inher ently inc ludes these factor s, it also c laims that othe r enh ance men t fa ctor s app ly. Th e sta te ar gues that fac tor (9 ), use of a n expl osive device or

deadly weapon, should apply because the defendant use d gasoline a nd that fact or ( 11), comm iss ion of a fe lony involv ing deat h wh en previ ousl y c onv ict ed of a felony involving bodily injury, applies because of her prior aggravated assault convicti on.11 Appellate review of sentencing is de novo on the record but with a presumption that t he trial cour t’s determinat ions are cor rect. See T.C.A. § 40-35- 401(d). The weight to be g iven a sente ncing factor is wit hin the trial court’s di scretion. See T.C.A. § 40-35- 210, Sentencing Commission C omments; State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). However, an appel late court need not ignore t he existence of other enhancement or mitigatingfactors show n to exist in the recor

d. State v. Pear

son , 858 S.W .2d 879, 885 (Tenn . 1993).

First, con trary to

the defendant’s cla im, we beli eve that the c ircumstances warrant a finding that the victim was treated with exceptional cruelty. Dousing the victim with g asoline and sett ing her on fir e, thereby l eaving her

with substantial burns

that requi red drastic

treat ment and ultim ately resul ted in death, is a pa rtic ularl y gr uesome method of killing . Also, alth ough we doubt that the ig niting of ga soline poured o nto the victim constitutes the u se of an explosi ve devi ce, compare T.C.A. § 39-17- 1301(3) (explosi ve weapon) , we agr ee with the state that the defendant u sed the gasol ine in a manner to make it a

deadly weapon. See T.C. A. § 3 9-11 -106 (a)(5 )(B). Likewi se, we agree w ith the state th at enhancement factor ( 11) should appl y relati ve to her pr ior aggravated assault con viction, involv ing her sho oting the v ictim wi th a shotgun.

On the other hand, although the state concedes that factors (10) and (16) should not apply , we also conclude that the fact that the offense is mur der precludes application of factor

(6), reg arding the defendant inflictingparticular great inj uries upon the victi m. Needless to say, murder inherently

involves the greate st of injuries

.
Thus, the def endant’s sentence is subject to enhancement u nder factors (1), (5), (8), (9) , (11) and (1 3)(B). There are no mitig ating factors to consider. Under the circumstan ces of the offense in this case and the defendant’ s backgroun d and12

history, we concl ude that the maxi mum sentence of twent y-five years constitutes the least seve re measure needed t o achieve th e purposes of sentenc ing prov ided in T.C.A. § 40-35-102.
The judgment of conv iction is affirmed.

PER CURIAM