# FILED
September 11, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE FEBRUARY 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 01C01-9703-CC-00087

Appellee, * GILES COUNT Y VS. * Honorable Jim T . Hamilton, Jud ge RICHARD DARRELL MILLER * (Voluntary Manslaug hter and and JOHNNY WAYNE GARNER, Aggravated Arson) * Appellants. *
For Appellant Miller: For Appellee : Robert D. Massey John Knox Walkup P.O. Box 409 Attorney General & Repor ter Pulaski, TN 38478 Ellen H. Pollack For Appellant Garner : Assistant Attorney Gener al 425 Fifth Avenue North Hershell D. Koger Cordell Hull Buildi ng, 2nd Floor 135 N. First Street Nashville, TN 37243-0493 P.O. Box 1148 Pulaski, TN 38478 Mike Bottoms District Attorney General 252 N. Military Av

enue Lawrenceburg, TN 38464

OPINION FILED: _____________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendants, Richard Darrell Miller and Johnny W ayne Garner, indicted for first degree mur der and aggravated ar

son, were jointly

tried and convicted of voluntary manslaughter and aggravated arson. The trial court sentenced each defendant to five year s for manslaughter and fifteen year s for aggravated arson. Th e senten ces are to be served c onsecut ively.

In this appeal of right, both defendants prese nt the following issues: (I) whether the ev

idence is sufficient to support e ach of the convictions; and (II) whether the trial court erred by refusing to instruct arson as a lesser grade offense of aggravated arson.
The defendant Miller presents two additional issues: (III) whether the trial court erred by granting the state's motion to consolidate and by fail ing to give adequat e instructions on co-defendant Gar ner's confession; and (IV) whether erroneous jury instructions require reversal. (V) Finally, each defendant claims that the trial court erred by ordering consecutive sentences.
We affirm the judgment of the trial court.
In the early morning hour s of October 27, 1995, Pulaski F ire Chief Jimmy Thompson responded to a fire at number 37 Town and County Trai ler Park. Other firemen

were alr eady at the s

cene when C hief Thompson ar rived. The

victim, "Bud" Wright, was discovered at the west end of the m obile home; pieces of a table and chrome dinette chairs w ere found near the body. Chief Thompson, a certified fire investigator, s uspected arson because of the trauma to the victim and the unusual position of the furniture. Because h e was unable to locate any accelerants,3 he concluded that he "couldn't definitely say it wa s arson."
Several days later, Officer John Dickey of the Pulaski Police Department interview

ed Garner and Miller about the incident. Miller

told Officer Dickey that at lunchti me on October 26, 1995, he met Garner and the victim at the victim's trailer. He recalled that about 2:30 P.M., he left the residence with his brother, Kirk Mille r, and they went to thei r mother's house. Mill er stated that he returned to the victim's

residence sometime later. G arner and "three [other] guy s," who were drivi ng an older model county pol ice car, were present . Miller remembered that he and Garner then w ent to a liquor store and to a convenient mart with the three men before r eturning to the victi m's residence. Miller claimed that when these men left, he cooked d inner for the victim and that he and Garner then drove away. When Officer Dicke y asked about an injury to his hand, Miller explained that he hurt himsel f while working on a roof.

Garner, who had spent th e night of Oc tober 25 with the victim, provided a different account. H e recalled Miller ar riving at the resi dence at lunchtime on the day of the fire and r emembered traveling to a l iquor store with a neighbor, Donnie Brow n, and then to a convenient stor e with three men in the w hite vehicle. Garner als

o recalled traveling

to a second liquor stor e. He contended that when he and Miller left the victim's residence around 6:00 P.M., the three other men, who he could not identify,were still there.

Dr. Charles Harlan, a forensic pathologist w ho had performed the autopsy, found three concurrent causes of death: "blunt trauma to the c hest, inhalation of carbon monoxide, and acute ethanolism." There wer e fractures to the sternum and multiple rib fractu res caused by repeated blow s to the chest area.4 There had been an overexposur e to carbon monoxide, whi ch is a component of natural g as; the vic tim, who ha d a carbon monoxide level of 2 0 percen t, would ha ve to have had a 40 percent lev el for that to be classified as a sole cause of death. According to Dr. Har

lan, the blood alcohol lev el of the victim, whic

h was .36 percent, could have caused the death without the other two contributing causes. He explained that at .30 percent one in one thousand persons mig ht die and at .40 percent level, fifty per

cent die. Dr. Harlan al so observed that there w ere fourth degree burns over ninet y-eight percent of the body and heat fractures to the teeth. An examination of the trachea, however, showed there was no soot present, "which means that he was not aliv e at the time that the body w as burned ...."
On October 27, 1995, the day after the fire, Officer Chris Barber received a call about a fig ht at the Town and County Trai ler Park. When he arrived at the scene, he learned that defendant Gar ner had been involved. G arner was then arrested for public intox ication and transported to the police station. On the way to the station, Gar ner told the officer that he could not believe he was being arrested for "what happened las t night." Garner informed Officer Barber that the victim had been killed the night before and that it w as "no accident." When Officer Barber asked him what he meant,Garner responded, "He was killed." Officer Barber advised Garner t o discuss that matter wi th an investigator. Garner stated that he did not want to because "you know what happens to people that tell on other people."
Ricky Coleman, who is incarcerated in the Department of Correction on a theft conviction and who also had other charges pending at the time of trial, testified that he was in j ail with Garner shor tly after the fire. He cl aimed that Garner informed him that he had been drinking with the victim on the day of the fire and had5 admitted that when every one else had left, he and the vic tim began "scuffling and fighting." Coleman recal led that Garner acknowl edged stabbing the vic tim several times, turning on the gas in the kitchen, and then leav ing.
Guy Miller, wh o lived near the trail er park and knew both defendants by "name and face," testified that he saw both men leave the trailer park about 10:30 P.M., some ten minutes before the fire. He remembered that they were "laughing and carrying on, and kept looking back toward [the victim's] trailer." He recalled that Garner w

as not wearing a shir

t. Later, Guy Mille r heard a loud pop and saw a "big glow

in the sky." He stated that the victim's body was located in the storage area of the trailer, an area in which he w as rarely seen.

Donnie Br own, next-d oor neigh bor to the victim, te stified that he d rove Garner and Miller to the store on the morning of the fire and then returned them to the victim's residenc

e. He recalled that sometime l ater, Garner asked whethe r he had left a knife in his car. When they searc hed the vehicle, a knife w as found on the passenger side of the seat. He remembered Garner saying that the victim had "said something [offensive] to" him and that he d id not "appreciate being talked to like that." Brown stated that Gar ner cursed the victim a nd threatened to "whup" him.
Nancy Walls, who lived in a nearby trailer, tes tified that she saw Garner at the victim's

trailer a couple of days before the fire; he was bangin g on the door with a two-by

-four. She recalled that at appr oximately 8:00 P.M. on the evening of the fire, she heard an argument at the victi m's trailer during w hich Garner had cursed the victim.

Roger Dale Clark, who lived two tr ailers away from the v

ictim, testified6 that between five and six o'clock P.M., only hours before the fire, he and his nephew went to the liquor store with Miller and Garner. About forty-five minutes after their return, Clark and his br other, Tim, returned to their own trailer, whi ch they shared with their mother; only

Garner, Miller, and the victim were left. Clark remembered that his brother went back to the victim's res idence sometime later and he w as asleep by the time his bro ther returned. Clark ac knowledged that he had pri or convictions for aggr

avated theft, two counts of forg ery, unauthorized use of a motor vehicle, and illegal

possession of a controlled sub stance.

Tim Clark testified that he sta yed with the vic

tim while the others r

ode to the liquor store. He also remembered that when he left with his brother, the victim and the defendants were the only ones there. He recalled that at one point, when the victim left the main area to go to the bathroom, Miller followed aft er him. Clark recalled that he could hear no ises that sounded like someone w as being beaten and that when Miller re

turned to the room, he was w iping his hands. Clar

k stated that he did not see the victim after that incident. He provi ded the police with this information about a week after the fire. Tim C lark acknowledged pr ior convictions for pas

sing worthless checks and theft.

Officer Mike McCallis

ter, who also interv

iewed both defendants about the fire, testified that Mill er, who admitted being at the victim's traile r on the evening of the fire, had been drinking w ith Linda Hughes, Garner,and the other individuals

. He recalled the defendant Miller claiming that he cooked dinner f or the victim before leaving the trailer

with Garner between

6:00 and 6:30 P.M.; Miller claimed that the victim was alone, i ntoxicated, and lying on his bed, but not asleep. Officer McCallister stated that Miller claimed that he had injured his swollen left hand while doing roofing work. Officer McCallister r ecalled that Garner prov ided a similar7 statement. He remembered Garner saying that everyone was drinking and that Ms. Hughes and the "three guy s" left the trailer about fiv e minutes before he and Miller did. The officer recalled Garner claiming that when the two men left, the victim w as "fine and ... cutting up."

Angela Norwood, a defense witness, testified that thirty minutes befo re the fire, Garner and Mille r arrived at her tr ailer in a four-door w

hite car driven by Charles Moore. She stated that the men knocked on her door, but that she did not answer, and the men soon left.

Blanch Miller, the defendant M iller's mother, testified that Miller was at her house until about 11:00 A.M. that morning, at which time she drove him to the victim's trailer. She stated that the next ti me she saw her son was at 6:00 P.M., when he stopped briefly at her house before returning to the victim's traile r. She recalled that Miller and Garner returned to her hous e around 7:00 P.M. and that defendant Miller was sti ll there at 8:30 P.M. w hen her sister, Frances Miller, called. Ms. Miller testified that Gwen Warren, a neighbor, called at 7:00 P.M. and again at 10:30. She expressed wi th certainty that neither the defendant Miller nor the defendant Garner had left her traile r after 7 P.M. on the evening of the fire.

Kirk Miller testified that he drove his brother, the defendant Miller, from the victim's traile r to their mother's house at about 5:00 P.M. Frances Mi ller, an aunt, testified that the defenda nt Miller answered the telephone when she called his mother at 8:30 P.M.

Gwen Warren also testified for the defense. She r ecalled hearing about a fire at the trailer par k. When she called Ms. Miller at app roximately 10:308 P.M. she heard the defendant talking in the background.
Linda Hughes, who liv

ed a few trailers aw

ay from the victim w

hen the fire occurred, testified that s he was at the victim's trailer before the fire. She left and upon her return a few hours l ater, did not see either defendant pr esent at the trailer. On her second visit, she smoked crack cocaine with Timothy Clark, Roger Clark, and Charles Moore; she remember ed that all three of the men wer e there when she left. Ms. Hughes acknow ledged giving a prior statement to police i n which she made no reference to her second vi sit to the victim's r esidence. She explained that she decided to "change [her] story" when she quit using illegal drugs.

I The defendant Miller challenges the suff iciency of the evidence for his aggravated arson conv iction. The defendant Garner arg ues there is insufficient evidence for both of his conv ictions.
On appeal, the state is entitl ed to the strongest legi timate view of the trial testimony and all

reasonable inferences whi ch might be drawn therefro m. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). The credibility of the witnesses, the weight to be giv

en their testimony, and the r econciliation of conflicts i n the proof are matters entrusted to the j ury as trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). The r elevant question is w

hether, after reviewi ng the evidence in the ligh t most fa vorable to the state , any ratio nal trier o f fact c ould have found the essential elements of the cri me beyond a reasonable doubt. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e)

.

A person commits the crime of ars on when he "knowingly damages9 any structure by means of a fire or explosion" without the owner's consent . Tenn. Code Ann. § 39-14-301(a)(1). Arson becomes aggravated where "one (1) or more persons are present therein. " Tenn. Code Ann. § 39-14-302.

Viewed in the light most favorable to the state, the evidence establishes that Miller and Garner were the last people to see the victim alive. Tim Clark testified that before he l eft, Miller had severel y beaten the victim. M iller, who had a swollen left hand the day after the fire, was seen leav ing the area a few minutes before the trailer ex ploded; he was "laughing and carrying on, ...looking back toward" the vic

tim's residence. The body w as discovered in the st

orage room in the trailer, an area he rarely occupied. Fur niture from the kitchen and liv ing room had been piled on top of the victi m. One of the contributing caus es of death was an extraordinarily high level of carbon monoxide. These circumstantial facts are sufficient to support the verdi ct of guilty of aggra vated arson. They support the state's theory th at the defen dants disabled the victim, placed him in the storage room, piled furniture on him, st arted the fire, and then left.
Miller argues that the state's own expert could not determine that the cause of the fire was arson. He cites Ricketts v. State , 241 S.W.2d 604, 605 (Tenn. 1951), w here our supreme

court h eld that

"if nothi ng appea rs but t he mere fa ct [of a fire,] the presumption is that the fire was a result of acci dent or some providential cause."
Proof of an arson requires tw o "fundamental facts": "a burning" and "some criminal agency w hich caused the burning." Collins v. State , 445 S.W.2d 931, 933 (Tenn. Crim. App. 1969). The state, however, is not necessarily req uired to use expert testimony in an arson case. In State v. Henley , 774 S.W.2d 90810 (Tenn. 1989), the defendant was conv icted of two counts of first deg ree murder and one count of aggravated ars on. In that case, the fire marshal l suspected arson but there was "no physical

evidence of that fact." Id. at 914. The defendant argued that in the absence of "any proof of a crimi nal agency which c aused the burning," he could not be convicted of ars on. Id. at 913. Our supreme court nonetheless found the evidence sufficient. One v ictim at the scene of the fire had di ed from a gunshot wound; the other died of burns and gas inhalation. A witness had seen the defendant drive toward the s cene of the fire minutes before the fire occurred. Henley was seen leav

ing the area soon after the fire started. In our view , the ruling in Henley

governs in this ca

se.
The defendant Miller also arg ues that because it was undi sputed that the victim was dead at the time the fire began, an element of the crime of aggravated arson, that

a "person" be present, was not proved. Tenn. Code Ann. § 39-14-302. Miller arg ues a corpse, rather than a "per son" was present and that burning a corpse is a s eparate crime. See Tenn. Code Ann. § 39-17-312.
While Dr. Harlan did testify that th e victim had already died when the fire began, the evidence show s that the defendants, who wer e the last to leave, disabled the victim before l eaving the trailer.Minutes after their departur e, the trailer erupted into flames. Gas, a contr ibuting cause of death, also w as a factor in the fire. Under these circumstances, there is sufficient evidence to support the conclusion that the defendants completed all of the acts necessary to cause the fir e prior to leaving the trailer. In short, the victi m qualified as a "person" wh en the arson was initiated. That he died whi le the defendants were in the ac t of starting the fire, rather than after the explosion, does not affo rd the defendant Miller relief from this conviction.11 There is also ample evidenc e to support Garner's conv iction for aggravated arson. I n addition to the proof outlined abov e, Garner admitted to a cellmate that he turned on the g as in the trailer before his departure. These facts establish his liabili

ty for aggravated ar

son.
Garner also challenges the sufficiency of the evidence for his voluntary manslaughter convicti on. "Voluntary manslaughter is the intentional or know ing killing of another in a s

tate of passion produced by adeq uate provocation sufficient to lead a reasonable person to ac t in an irrational manner." Tenn. Code Ann. § 39- 13-211(a). Here the proof establishes some type of ongoing feud between Garner and the victim. The proof also s hows Garner was i nvolved in an attack upo n the victim before his departur e and that he turned on the gas as he left, thereby establishing "knowi ng" acts. Trauma to the chest and overexposure to carbo n monoxide were contrib uting causes of death. In our v iew, these facts are sufficient to support the jury's v

erdict of guilty of v

oluntary manslaughter.
Garner also argues that because the defendant Miller caus ed the trauma to the chest of the victi m and because voluntary i ntoxication was als o a
co nt ri bu ti ngfa ctor , h e can not b e h el d c ri mi na ll y r es po ns ib le

fo r t he de at h. We disagree. Garner's ar

gument ignores proof that he admitted to a cellmate that he "stabbed" the victim seve ral times. By turning the gas on in the trailer, Garner was the source of a third contributing factor, the carbon mon oxide poisoning. To convict the defendant of homicide, it "is not neces sary that his act ... be the sole cause, nor the most immediate cause of death." State v. Roberson , 644 S.W.2d 696, 699 (Tenn. Crim. App. 1982). All that is required is that the defendan t unlawfully "contributed to the death of the deceased. " Id. (citing Letner v. State , 2 99S. W. 1049 (Tenn. 1927)). If an act of the accus ed contributes to the death, he may be12 held responsible even thoug h the acts of a third party may have also contribut ed to the death. 40 C.J.S. Homicide § 5 (1991).

II The next issue is whe ther the trial cou rt erred by refusin g to charge arson as a lesser grade offense of aggravated arson. Both defendants argue that there is insufficient evide nce of aggravated arson an d that an arson instruction was required based upon the proof pr esented at trial.
The trial court has a duty to give a complete char ge of the law applicable to the facts of the case. State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986). It is settled law

that "where there are any facts that are susceptible [to an inference] of guilt of any lesser included offe nse or offenses, then there is a mandatory duty upon the trial judge to charge on such offense or of fenses. Failure to do so denies a defendant his consti tutional right of trial by a jury." State v. Wright , 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981) (cit ations omitted). When there is a trial on a si ngle charge of a felony, ther e is also a trial on all

lesser included offenses, "as the facts may be." Strader v. State , 362 S.W.2d 224, 227 (Tenn. 1962). Trial courts may omit an instruction on a lesser included of fense only when the record is dev oid of evidence to support an i nference of guilt of the lesser offense. State v. Stephenson , 878 S.W.2d 530, 550 (Tenn. 1994); State v. B oyd , 797 S.W.2d 589, 593 (Tenn. 1990). There is an affirmative duty on the part of the trial judge to charg e the jury on lesser i ncluded offenses charged in the indi ctment whether requested to do s o or not. See Howard v. State , 578 S.W.2d 83, 85 (Tenn. 1979).

In State v. Boyce , 920 S.W.2d 224 (Te nn. Crim. App. 1995), this court13 ruled that an omission of a lesser included off ense from the charge to the jury always requir

es a new trial. The opini on was largely based upon the ruling of our supreme court in Poole v. State , 61 Tenn. 288, 294 (1872):

However plain it may be to the mind of the Court that one certain offense has been committed and none other, he must not confine himself in his char ge to that offense. Whe n he does so he invad es the pro vince of t he jury, whose peculiar duty it is to ascertain the g rade of the offense. However clear it may be, the Court should never decide the facts, but must leave them unemba rrassed t o the jury.

On the ot her hand , "[w]here the evide nce in a re cord clea rly shows that the defendant was guilty of the greater offense and is devoid of any evidence permitting an in ference of gu ilt of the lesse r offense, t he trial court's f ailure to charge on a lesser offense is not error." Stephenson , 878 S.W.2d at 530. This court has held that no instruction is required where the e

vidence shows that the crime was committed and the only issue i s whether this partic ular defendant was the one wh o committed the crime. Price v. State , 589 S.W.2d 929, 932 (Tenn. Crim. App. 1979). "Where the State's evidence establishes th at the crime specified in the i ndictment was committed and the defendant seeks only to establish an ali bi, leaving the State's evidence as to the d egree of crime uncontradicted,no instructions on lesser included offenses are required. " State v. Barker , 642 S.W.2d 735, 738 (Tenn. Crim. App. 1982).

In State v. Trusty , our supreme court observ ed that "Tennessee law recognizes two t

ypes of lesser offenses ... : a l esser grade or class of the charged offense and a lesser included offense." 919 S.W.2d 305, 310 (Tenn. 1996) . The trial judge has a statuto ry duty to charge the jury "on lesser g rades or classes of the charged offense supported by the ev idence." Id. ; Tenn. Code Ann. § 40-18-110. The trial judge also has a duty grounded in case l aw to instruct the jur y on lesser14 included offenses. Trusty , 919 S.W.2d at 311.

A lesser grade or cl ass of the charged offense is determine d by reference to the statutory s cheme. Id. For example, vary ing grades and classes of homicide are defined at Tenn. Code Ann. § 39-13-201 and codified at Tenn. Code Ann. §§ 39-13-202 et. seq.

The other type of lesser offense is one "necessarily includ ed in the indictment." Trusty , 919 S.W.2d at 311. In Wright v. State , 549 S.W.2d 682 (Tenn. 1977), our supreme court outli ned the test to determine whethe r an offense is lesser and included in the greater offense. Quoting the late Ju stice Weldon W hite in Johnson v. State , 397 S.W.2d 170, 17 4 (Tenn. 1965), the court ruled as follows:

The true test of which is a l esser and which is a g reater crime is whether the elements of the former are complet ely contai ned within the latte r, so that to prove the greater the State must firs t prove the elements of the lesser. Wright , 549 S.W.2d at 685-86.

Two years later, our

supreme court again address ed the subject: We believe that the better rule, and the one t o be followed henceforth in this St ate, is the rule adopted implicitly by thi s court in Wright v. State , supra , that, in this context, an offense is neces sarily included in another if the elements of the greater offense, as those elements are set forth in the indictment, include, but are not congruent with, all elements of the lesser. If there is evidence to support a conv iction for such a lesser offense, it must be charged by the trial judge. T.C.A. § 40-2519 [now Tenn. Code Ann. § 40- 18-118(a)]; Whitwell v. State , 520 S.W.2d 338 (Te nn. 1975). Howard , 578 S.W.2d at 85.

Arson is a lesser gr

ade of aggravated arson. It is also a lesser15 included offens e. We must con clude, ho wever, that an arson wa s not an al ternative in this case. The defendants wer e either guilty of the g reater crime, based upon the proof offered at trial, or nothing at all. The defense to the charges was that of alibi. Several defense witnesses testified that Miller and Garner were at Ms. Blanch Miller's residence when the fire occurred. The p urpose of Ms. Hughes' testi mony was to suggest that someone other than the defendants was r esponsible for the fire. The victim was in the trailer when the seri es of acts, including the r elease of carbon monoxide gas, resultin g in the fire were beg un. In our view, the jury's only task was to determine the identity of the perpetrator, not the degree of the arson. Price , 589 S.W.2d at 932.

A possible argument is that because the victim died before the f ire actually began, there was a reasonable basis for the jury to conclude that a simple arson occurred. The defendants insi st that there is proof that ther e was not "a person" inside the structur e when the fire occurred; therefore, the arson could not have been aggravated.

This court addressed a simil ar issue in State v. Alcorn , 741 S.W.2d 135 (Tenn. Crim. App. 1987). In that case, the defendants were conv icted of possession of "[t]hirty g rams or more of any substance c ontaining cocaine." Id. at 138 (citing Tenn. Code Ann. § 3 9-6-417(c)(1)(E) (Supp. 1986)). Tests establish ed that they possessed 26.39 gr ams of "pure cocaine" and that the remaini ng ingredient was a "cutting agent." Id. at 137. The defendants argued that beca use the amount of cocaine was less than thirty grams, they were entitled to an instruction on lesser offenses. Id. at 139. The trial court, however, found that as a matter o f statut ory interp retation , the amo unt they p ossessed satisfie d the thir tygram amount. Id . This court ruled the matter to be a "question of law, not of fact."16 Thus, the defendants were not entitl ed to a jury charge on lesser offenses. Id.

Here, no set of circumstances,whether offered by the state or the defense, established that the vi ctim was a corpse at the time steps were initi ated to commit the arson. Because it i s undisputed that carbon monoxi de gas was present in the body, thereby cont ributing to both the fire and the death of the victim, the defendants cannot prevail on thi s issue, whether the q uestion is one of law or fact.

III The defend ant Miller argues th at the trial court erred by not grantin g a severance and by failing to instruct the jury

on co-defendant Garner's confession to cellmate Coleman. The defendant s were indicted separately; the state, however, filed a motion to consolidate. The defendant Miller filed an objectio n to consolidation, arguing

Garner's pretrial st

atements would inculpate M iller, but Miller would not be able to cross -examine Garner, thus caus ing a Bruton problem. See Bruton v. United States , 391 U.S. 123 (1968). The trial court granted the state's motion.
During the state's cas e-in-chief, Ricky C

oleman testified that he was incarcerated with defendant G arner after the fire and that Garner discussed the events leading up to the v ictim's death. When Miller renew ed his objection, arguing that the state either had "to figure a way to keep Mr. Miller out of it or Mr. Miller is entitled to a separate trial ," the state, out of the presence of the j ury, instructed its witness to not say "any thing in regard to M r. Miller."

Coleman testified that Garner tol d him that he was at the trai ler drinking when he and the victim got into a fig ht. Garner informed Coleman that he17 stabbed the victim several times and then turned the gas on in the kitchen bef ore leaving. During cross-examination by Attorney Koger, the defendant Garner's attorney, the following

exchange occurred: Attorney Koger: You said [in your pr ior statement] that apparently there w as an ... extension cord tied around [the victim's] legs? Coleman: That wasn't done by Mr. Garner. Attorney Koger: Pardon? Coleman: That wasn't done by Mr. Garner. Attorney Koger: But here again, if we had te stimony in here that when the body was found, there was nothi ng wrapped around the legs or anything unusual about that, that wouldn't be consiste nt, either, would it? Coleman: Well , I don't k now. Attorney Koger: Well, it wouldn't be the same thing that you are saying

that he told you? Coleman: Well, I'm just--that's what I sai d. What he told me. Attorney Koger: Sure. That makes it inconsist ent. Right? Coleman: If you say so. No limiting instruc

tions were give n to the jury. Defendant Mi ller argues that the above exchange, wherein Colemen testified that Garner did not restrain the victim with an extension cor

d, implicated Miller. He also argues that the onl y proof of an arson is Garner's statement that he turned on the gas in the kitchen and then left.

Rules 8, 13, and 14, Tenn. R. Cr im. P., govern when codefendants may be tried together. R ule 8(c) states that "tw o or more defendants may be joined in the same indictment, presentment, or info rmation: (1) if each of the defendant s is charged with accountabi lity for each offense included; or (2) if each of the defendants is charged with conspiracy, and some of the def endants are also18 charged with one or mor e offenses alleged to be in furtheranc e of the conspiracy." Rule 13(a) of the Tennessee Rules of Criminal Procedu re provides that the court "may order consolidation o f two or more indictments, pr esentments, or information for trial if the offenses and all defe ndants could have been joined in a single indictment, presentment, or infor mation pursuant to Rule 8."
Offenses which are permissi vely joined under R ules 8 and 13 may be severed upon motion of the defendant as a matt er of right under Rule 14: (c) Severance of Defendants. (1) If a defendant moves for a sever ance because an out-of-court statement of a codef endant makes reference to the defendant but is not admissibl e against the defendant, the court shall determine whether the state intends to offer the statement in evi dence at trial. If so, the court shall require the prosecuting attorney to elect one of the following courses: (i) A joint trial at

which the statement is not admitted into evidence or at which, if admitted, the statement would not constitut e error; or (ii) A joint trial

at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, if, as delete d, the confession will not prej udice the moving defendant; or (iii) Severance of the mov ing defendant.
Absent a showing of prejudi ce, a reviewing court may not overtur

n the trial court's exer

cise of discretion on the is sue of severance. State v. Coleman , 619 S.W.2d 112, 116 (Tenn. 1981); State v. Hopper , 695 S.W.2d 530 (Tenn. Crim. App. 1985).
The statement of a non-testifying c o-defendant implicating another defendant violates the constitutional rights of the latter in a joint trial. Bruton v. United States , 391 U.S. 123 (1968). The ruli ng in Bruton is based on the acknowledgment that "admissio n of a co-def endant's conf ession implicat ing a19 defendant at a joint trial consti tutes prejudicial error

even though the trial c ourt may give clear, conci se and understandable instructions that confessions could only be used against a co-defendant and must be disregarded with r espect to any other defendant." State v. Bailey , 865 S.W.2d 7, 9 (Tenn. 1993).

After Bruton , a plurality of the United States Supreme Court had held that where both d efendants h ave given interlockin g confessions a nd the trial judge gives an appropriate l imiting instruction, the defendant's constitutional ri ghts are not violated. Parker v. Randolph , 442 U.S. 62 (1979). In Cruz v. New York , 481 U.S. 186 (1987), however, the United States Supreme Court held that even if the defendant's own confession is admitted and the jury is cor rectly instructed as

to how to analyze the nontestifying co-defendant's confession, the Confrontation Clause is violated if the nontestifyi ng co-defendant's confession impli cates the defendant. Under Cruz , a Bruton error may be avoided by "proper redaction of the co nfession." State v. Person , 781 S.W.2d 868, 872 (Tenn. Crim. App. 1989).

It is only when all

connecting references to the defendant are redacted from the co-defendant's statement that the ev idence may be admitted. See Dorsey v. State , 568 S.W.2d 639, 642 (Tenn. Crim. App. 1978); Taylor v. State , 493 S.W.2d 477, 480 (Tenn. Crim. App. 1972). Any v iolation of the defendant's rights under the Confrontation Clause may be subjected to a harmless er ror analysis. Cruz , 481 U.S. at 194; State v. Porterfield , 746 S.W.2d 441, 446 (Tenn. 1988).

In our view, the stat

e took appropriate measures to p rotect defendant Miller's right to confront adverse witnesses. Coleman was instructed not to make any reference to defendant Mill er's participation; he c omplied with that directive. The above-quoted exchang e, wherein Coleman testified that Garner did not bind the20 victim's legs w

ith an extension cord, di d not implicate Miller only because further cross-examination cle

arly established that there was no proof that anyone had bound the victim's leg s. The point of the cross-ex amination, in our interpreta tion, was that no one had bound the v ictim's legs, not that M iller had done so.
Even if the testimony did i mply Miller had bound the victim's legs, an inference unsupported by any other facts in evidence, Tim Clark testif ied that just before he left, he overhe ard Miller severely be at the vict im. In our view, any Bruton error which may hav

e inadvertently occur

red by the exchange w as harmless beyond a reasonable doubt. Porterfied , 746 S.W.2d at 446.

The defendant Miller also arg ues that Garner's confession th at he turned on the gas and then left is the only evidence of an ar son. Thus, he argues that absent Garner's confession,he could not be found guilty of arson. We cannot agree. There is ample other evidence of Miller's participation in the agg ravated
arson. See Henley , 774 S.W.2d at 914. Miller was one of the l ast people seen with the victim at the trail er. A short time before the fire,he beat the victim and w as then seen leaving the trai ler. The victim's body , which had a high lev el of carbon monoxide gas, was found in the storage area, an area where the victim was rarely
seen.
Miller also complains that the trial judge faile d to give a limiting instruction when Cole man's testimony was admitted into evidence. In Richards on v. Marsh , 481 U.S . 200, 21 1 (1987) , the Sup reme Cou rt addr essed ad mission

of a properly redacted confessi on accompanied by limiting instruction: The rule that juries are presumed to follow their instructions is a prag matic one, rooted less in the absolute certitude that the pr esumption is true than in the belief that it represents a r easonable practical21 accommodation of the interests of the stat e and the defendant in the criminal justice process. On the precise facts of Bruton , involving a faci ally incriminating confession, we found that accommodation inadequate. ...[T]he calculus changes w hen confessions that do not name the defendant are at issue. ... We hold that the Confrontation Clause is not v iolated by the admission of a nontestifying codefendant's c onfession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to her exi stence.
This court has interpreted Richardson as requiring a li miting instruction; the failure to give one, however, may be found to be harmless. Person , 78 1 S .W. 2d at

87 2. Th e t ri al ju dg e e rr ed by fa il in g t o g iv e a li mi ti ngin st ru ct io n. We conclude, however, that that omission clearly

had no impact on the verdict

. See id.

IV Miller also argues

that the trial court err

ed by refusing to giv

e a special jury instruction that "if nothing appears but the fact of b urning, there is a presumption that fire was a r esult of accidental or prov idential cause." (citin g Ricketts v. State , 241 S.W.2d 604 (Tenn. 1951)).

The trial court, of course, has a duty to give a co mplete charge of the law applicable to the facts of the case. Harbison , 704 S.W.2d at 319. While the defendant may request special instructions, jury instructions are sufficien t where they adequately state the law. See, e.g. , State v. Tyson , 603 S.W.2d 748 (Tenn. Crim. App. 1980). When a trial court's charge to the jury i s complete, it need not give additional speci al instructions reques ted by the defendant. See State v. Story , 608 S.W.2d 599, 603 (Tenn. Crim. App. 1980).

The trial judge instruc

ted on aggravated arso n as follows:22 Aggravated arson: A

ny person who commits the offense of aggravated arson is guilty of a crime. For you to find the defendants guilty of this offense, the State must have proven, beyond a reasonable doubt, the existen ce of the following essenti al elements: One, that the defendants, by means of fire or explosion, damaged a struc ture as described in the indictment; And two (a), that the defendants did so without the consent of all pe rsons who h ave a poss essory, proprietary, or secu rity interest therei n; Or (b), that the defendants did s o with intent to destroy or damage the str ucture for any unlawful purpose. And three (a), that one or more persons were present therein; Or (b), that a person suffered bodily injury as a result of the fire or explosions; And fou r, that th e defen dants ac ted knowin gly. To constitute a burning within the meaning of this instruction, it is not necessary that the subject of the fire be destroyed. There is suffici ent burning if the nature of the combustible to which the fire or explosive is set is changed or charred.

*** Property means anything of value, including, but not limited to, money, real estate, or tangible or intangible persona l propert y.
In our view, the trial court's instructions on aggravated arson were correct and complete statements of the law. Thus, the trial court did not err by refusing to give the s pecial instruction.

V

The final issue is whether the trial court erred by ordering each defend ant to se rve consec utive sent ences. Ea ch defe ndant was sentenc ed to five years for manslaughter, w hich has a range of three to si x years, and fifteen year s for aggravated arson, w

hich has a range of fifteen to twenty-five years. The sentences were ordered to be serv ed consecutively for effectiv e terms of twenty year

s. Both defendants argue that the trial court did not make the appropri ate findings on the23 record to support impositi on of consecutive sentences.

Garner was twenty

-seven years old w

hen his presentence report w as compiled. He has seven pr ior convictions for publ ic intoxication, one ag gravated assault conviction, tw

o simple assault convic tions, and one conviction for stalking. The aggra vated ass ault convi ction occ urred in 1 994 and t he defe ndant re ceived fi ve years on probation. The repor t indicates that the defendant takes medi cation for depression and uses alcohol excessively. He has a sporadic work history as a laborer.
Miller has over fifteen prior convictions for public intoxication. He also has prior convictions for resisting arrest, driving on a revoked license, reckless driving, DUI, di sobeying traffic laws , and failing to stop at the sc ene of an accident. He completed the ninth grade and obtained certification for tack welding and inner shield welding. He worked as a carpenter for his brother, Kirk Miller, from 1986 until 1995.

Barbara Watson, the victim's brother,testified that the trauma of losing her brother was exac

erbated by the fact that foul play was involved. She and her family asked that both defendants rec eive the maximum sentences po ssible. The victim's mother, Geral dine Wright, testified that her son's death "tore [her family] to pieces."
When a challenge is made to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a "de nov o review ... with a presumption that the determinations mad e by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d). The Sentenci ng Commission24 Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.

Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210.

Prior to the enactment of the Cri minal Sentencing Reform Act of 1989, the limited classifications for the imposition of co nsecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 39 3 (Tenn. 1976). In that case our supreme court ruled that aggravati ng circumstances must be pr esent before placement in any one of the classifications. Later,in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the court established an addition al category for those defendants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however, additional words of caution : "[C]onsecutive sentences should not routinely be imposed . . . and . . . the agg regate maximum of consecutiv e terms must be reasonably related to the severity of the offenses inv olved." Taylor , 739 S.W.2d at 230. The Sentencing Commission C omments adopted the cautionary la nguage. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the holdings in Gray

and Taylor ; consecutive sentences may be imposed in the discretion of the trial cour t only upon a determination th at one or more of the1 The first f our crit eria are f

ound in Gray . A fif

th category

in Gray , based on a speci fic number of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion

. See Tenn. Code Ann. § 40-35-1 15, Sentenci ng Comm ission Comments. 25 following criteria 1 exist:

(1) The defendant is a professional c riminal who has knowingly dev

oted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous mental ly abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to sentencing that the defendant's cr iminal conduct has been characterized by a pattern of repetitive or compulsive behavior w ith heedless indifference to consequences; (4) The defendant is a dangerous off ender whose behavior indicates little or no regard for human l ife, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship between the defend ant and victim or victims, the time sp

an of defendant's undetected sexual activity , the nature and scope of the sexual acts and the extent of the residual, p hysical and mental damage to the victim or victims; (6) The defendant is sentenced for an of fense committed while on probatio n; (7) The defendant is sentenced for cr iminal contempt. Tenn. Code Ann. § 40-35-115(b).

In Gray , our supreme court ruled tha t before consecutive sentenci ng could be imposed upon the dangerous offender, as now defined by subsec tion (b)(4) in the statute, oth er conditions must be present:(a) that the crimes inv olved aggravating ci rcumstances; (b) that consec utive sentences are a neces sary means to protect the public from the defendant; and (c) that the term reasonabl y relates to26 the severity of the offenses.

In State v. Wilkerson , 905 S.W .2d 933, 938 (T enn. 1995), ou r high court reaffirmed those principl es, holding that consecuti ve sentences cannot be required of the dangerous offender "unl ess the terms reasonably relate[] to the severity of the offenses committed and are nece ssary in order to protect the public (society) from further cr iminal acts by those per sons who resort to ag gravated criminal conduct." The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive sentencing adopted i n State v. Woods , 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human process that neither can nor should be reduced to a set of fixe d and mechanical rules." Wilkerson , 905 S.W.2d at 938. The record must show that the sentencing principles and all rel evant facts and circumstances were considered before the presumption of correctness applies.

Because the trial judge fail ed to make any findings as to why he ordered the sentences to be served consecutively, our review is de novo without the presumption of correctness. As to Garner's sentence, w e find two grounds for imposing consecutive s entences: (1) the defendant is an offender whose record of criminal activity is ex

tensive; and (2) the defendant is sentenced for an offense committed while on probation. See Tenn. Code Ann. § 40-35-115(b)(2), (6). W e also find that the term is "reasonably related [] to the severity of the offenses commit ted." Wilkerson , 905 S.W.2d at 938. The twenty-year sentenc e is also necessary t

o protect society from "further criminal acts." Gar ner has exhibited an escal ating pattern of violence, starting with si mple assault convictions , then aggravated assau lt, and now27 aggravated arson and manslaughter. Consecutive sentences for Garner are entirely appropriate.

In our de novo review of Miller 's sentence, we find that he i s "an offender whose record of criminal activity is ex

tensive." Tenn. Code Ann. § 40- 35- 115(b)(2). Although hi s prior criminal his tory does not show a pat tern of committing violent crimes, his record is extensiv e. He has over fifteen prior convictions for public intoxication. He also has prior conv ictions for resisting

arrest, driving

on a revoked license, reck

less driving, D UI, disobeying traffic l aws, and failing to stop at the scene of an accident. The convi ctions date back to 1984. Most of the convictions appear to hav e been alcohol related. Absent a lengthy period of incarceration, further misc onduct appears likely. In our view, the tw enty-year sentence is reasonably r elated to the severity

of the offenses. See Wilkerson , 905 S.W.2d at 938. We also approve of the imposition of consecutive sentences for Miller.
Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Judge CONCUR:

________________________________ William M. Barker, Specia l Judge

________________________________ Curwood Witt, Judge