### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
STATE OF TENNESSEE v. PAT RICK WINGATE
Direct Appeal from the Circuit Court for Bedford County Nos. 14304; 14367, William Charles Lee, Trial Judge

No. M1999-00624-CCA-R3-CD - Decided May 25, 2000

The appellant, Patrick Wingate, appeals his Bedford County convictions for first degree murder and aggravated

arson, which resulted

in sentences of life plus twenty-five ye ars. On appeal, he argues (1) the evidence is not sufficient to support either conviction and (2) the trial court erred by failing to grant a mistrial based upon the intro duction of prior bad acts of the appellant through the testimonyof a State’s witne ss. The jury

returned verdic

ts for both premeditated and felony murder. Although we conclude that the evidence is

not sufficient to support the jury’s verdict that the murder
was committed with premeditation, the evidence is sufficient to sustain their verdict for felony murder. Accordingly

, findin g no err or of law requiring reversal, we affirm the judgments of conviction enter

ed by the tri

al court. T.R.A.P. 3(b) Appea

l as of Right; Judgme

nt of the Circuit C

ourt affirmed.

H AYES , J., delivered the opinion of the court, in which S MITH and O GLE , J.J. joined.. Hershell D. Koger, Pulaski, Tennessee, attorney for appellant, Patrick Wingate.

P aul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Da vid H

. Findley, Assistant Attorney General, William Michael McCow n, Dis trict Attorney General, and Roger G. Crigler and

Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION

The appellant, Patric

k Wingate, was found g uilty by a jury of first degree murder and aggravated

arson. He was sentenced to life imprisonment for first degree murder and twenty -five years for aggravated

arson. In this

appeal as of rig

ht, the appellant c

ontends:

I. The evidence at

trial was insufficient to support a guilty verdict as to both the homicide and the arson charges; and II. The court

should have granted a mistrial when State’s witness Baker testified that the appellant “ha

d done killed once

before;”1 Dr. Harlan explained that “[a] lethal level of carbon monoxide is normally considered to be 40 percent or greater. . . .”


### -2- After review, we affirm.

Background

On December 15, 1997, at approximately 3:00 p.m., Wanda Shirley returned to the residence she shared with Steve Pugh o n Warners Bri dge Road inBedford County. As she drove up the driveway, she saw smoke coming from the shop behind the residence. When she opened the door to the shop, she only noticed one area of fire. She then quickly moved Pugh’s vehicle awa y from the building and called “911.”

At approximately 3:20

p.m., the Bedford County Volunteer Fire Department arrive d at the
scene of the fire. Charles Matthew Doak, a firefighter with the Volunteer Fire Services in Bedford Cou nty, testified that, when the firefighters entered the shop, they discover ed what appeared to be
a body lying on the floor. EMS was then called to the scene. The only fire in the room was under the victim; the fire wa

s contained to the b

ody and the f

loor immediately

beneath the body

. Beneath the body, burned checks and part of a burned checkbook were discovered. The body was located approximately

five feet from the door, in the center of the room. The body was identified as that of Steve Pugh.

Dr. Charles Harlan c

onducted the auto

psy. The exam

ination of the victi

m revealed multipl

e injuries including four different lacerationsor tears of the scalp and head and multiple areas of burn, including 80 percent

total body surface area, fourth degre e burns. “A fourth degree burn is char ring, looks like charcoal.” Dr. Harlan explained that “[t]he injuries to the headare the result of blunt force trauma t o the head caused by some firm hard object.” “I t would take considerable force to cau s e these injuries. . . it

would take about the same amount of force to create these injuries as it would for Mark McGuire or Sammy

Sousa to hit a base

ball home run 500 feet with a baseball bat.” Add iti ona lly, he opined that “. . . [the victim] was alive during the time of the fire, but that he died —before he could die of burns, from the blunt trauma to the head.” Indeed, Dr. Harlan noted that the victim’s “blood carbon monoxide [was] 23 percent, which is only halfway to lethal.” 1

Short ly after the discov

ery of the b

ody, the app

ellant, Jimmy B aker and Jeff Gib bs wer e developed

as suspects. The appellant, Baker and Gibbs were part-time employe es of the victim and had been working for the victim on the date of his murder. Pugh had hiredJimmy Baker t o complete various tasks resulting from Pugh’s move from the Wheel community

in Bedford County to the Warners Bridge Road residence. The move included the “set up” of Pugh’s mobile home. The appellant was later added to Pugh’s work crew.2 Baker was convicted of first degree murder and ag gravated arson.

3 At approximately noon, Wan da Shirley, wh ile on her wa y to Lewisburg, ob served Pugh with Jeff Gibbs, the a

ppellant, and Jimmy

Baker at Pugh’ s residence in Whe el.

4 John Gold, a neighbor of Pugh, followed Pugh’s truck that afternoon at approximately

2:30 pm, watching the truck pull u p to Pugh’s shop. He obs erved Pugh, Jimmy Ba ker and anoth er individual get out of the truck and enter the shop.

5 At trial, Dr. Harlan testified in reference t

o this statement that “the lacerations could have resultedfrom a fall fro m a seated position from a bar stool on to a wooden floor i

f the bar stool is located a couple of hundred feet above the floor, otherwise, it would be impossible.” 

### -3- At trial, the State’s principal witness was codefendant Baker. 2 Baker relate d that his first assignment

on the morning of December 15 was to purchase

some “Michelob.”

After returning

with the beer, Pugh, Baker, Gibbs and the appellant drove to the Wheel residence to “get a load of stuff” to take back to the new residence

. 3 The crew continued to work t hat morning, stopp

ing only to purchase more beer. At approximatel y 2:30 pm, themen returned to the Warners Bridge Road residence, where they proceeded to unload the truck. 4 By this time, “[Pugh] is done got pretty well lit” and he and Jeff

Gibbs began to a

rgue over Gibbs’ drinking Pugh ’s beer. Gibbs re treated to the residencewhere he was going to get something to eat, while Baker lef tthe shedto get Pugh more beer. Only the appellant and Pugh remained in the shop. While Baker was at his car, the appellant exited the shop and informed Baker that he was ready to leave

. Through the doorway of the shop, Baker observed Pugh ly

in g on the floor. Baker did not see any fire in the shop at this time. The appella ntretrieved Gibbs from inside the trailer and the three drove to town where Baker ca shed
somechecks. The thre

e went to Baker

’s mother-in-law’ s house to pick up his children and proceeded to Baker’s residence in Lakewood. Later that evening, law enforcement officers contacted Baker’s wife and informed her that Steve Pugh was dead and that Baker, Gibbs, and the app ella nt needed to contact the Sheriff’s Department. Baker contacted Detective Adams, who requested that the men come to the Sheriff’s Department. Before they left Baker’s reside nce, the appellant stated that he wanted t o c hange his clothes, so Baker gave the appellant a pair of Jordache jeans to put on. On the way to the Sheriff’s Department,

the appellant con

fided to Baker t

hat “he hit

Steve in the head and he knowed [sic] that
was what that was about.” At the Sheriff’s Department, the three men were advised of their Miranda rights. Each related that “[thevictim] fell off of a stool in the shop and hit his head. 5 They picked him up and put him back on it, and t hen they left.” All three men denied any “foul play” and any knowledge of the fire. At thi s point, the men wer

e requested to le

av e their clothing and shoes for the testing of accelerants. No arrests were made at this time and the three were provided or ange jail clothes to wear out of the office.

The following morning, the appellant telephoned Baker requesting that Baker pick him up. The two returned the jail clothes to the Sheriff’s Departmen t and went back to Baker’s residence.

### -4-

The appellant asked

Baker for some lighter fluid, went outside and proceeded t

o burn a pair of pa

nts. Th e appellant to ld Baker that he was burning the p

ants because the

y had blood on

them. While returning to to wn, the appellant instructed Baker to turn off the main road. Baker noticed the appellant with a piece of paper bearing Steve Pugh’s signature. The

appellant “held i

t up against

the window and started

writing a chec

k.” He wrote two c

hecks, “one in

[Baker’s] name a

nd one in his name.” The appellant then got out of the vehicle and “burned the rest of the checks.”

Baker drove to First National Bank where he cashed the check for $ 2500 written by the appellant; he deposited $500 in his bank accoun t and kept $2000 in

cash. The appellant and Baker then proceeded to Four

Lane Motors in Shelbyville. At the car lot, Baker purc hased a used

Ford van from Tom Koons, the owner. The men initially presented Koons with

a check for the purchase of the van, however, he re

jected the chec

k because it

was a two-party

check written on

Pugh’s account. Koons was aware tha t Pugh had beenmurdered the pre vious day. No

netheless, Koons a

greed to sell Jimmy Baker the van when Baker agree d to pay $500 in cash.

Soon after the appellant and Baker left the car lot with the newly purchased van, they we re stopped by authoriti

es. Following the arrest of the two men, officers recovered from Baker’s person
a check written on the deceased’s bank account and $792 in cash. Baker, with the assistance of legal counsel, agreed

to cooperate with authorities. Jimmy Baker directed authorities to a specific location
on Railroad Avenue/Anthony Road where the appellant had discarded the burned checks. The checks were for the account of Steve G. Pugh. Baker then directed officers to his residence/market in Lakewood. Baker showed authorities a spot on the patio where the appellant had burned his jeans. Special Agent Laura Hod ges, a forensic scientist with the Tennessee Bureau of I nvestigation, completedfire debris analysis on Steve Pugh’s boots. The analy sis revealed the pre sence of a petroleum

product. However, an analysis of the clothing of the victim did

not reveal the presence of any petrole

um distillates. The b

oots o f the appellant and Jeff Gibbs tested positive for the presenceof a petroleum product. Jim Baker’s boots revealed th e presence of a

product which cou

ld not be positively identified or classified due to the deteriorate

d condition of the sa

mple. The tests
were deemed inconclusive. Likewise, the clothing of the appellant revea led the presence of a product which could not be positively identified or classified due to the deteriorated condition of the
sa mple. Jeff Gibbs and Jim Baker’s clothing did not reveal the presence of any pe troleum distillates.
Detective Robert Filer, Bedford County Sheriff’s Depa

rtment, tes tif ied tha t he sen t th irt yeight alleged “forged” checks to the FBI for examination. Diana H arrison, a document examiner withthe Federal Bureau of Investigation, examined

numerous checks written on Steve Pugh’s bank account. She determined that some of the checks did appear to be genuine signatures of Steve Pugh and then there were some which appeared to have charact eristics of tracings or simulations in the Steve Pugh signature. Her analysis revealed that ten of the submitted checks were not the genuine signa ture of Steve Pugh, but were indicative of the signature being traced. Specifically , s h e identified the following checks as being traced:6 The checks dated December 12 were not passed until December 16. 

### -5- #101, dated 12-12-97, payable to Jimmy Baker f or $2500 #826, dated 11-16-97, payable to Patrick Wingate for $100 #876, dated 11-26-97, payable to Jimmy Baker f or $2000 #877, dated 11-26-97, payable to Patrick Wingate for $1850 #878, dated 12-1-97, payable to Jimmy Baker f or $2500 #879, dated 11-29-97, payable to Patrick Wingate for $250 #880, dated 12-7-97, payable to Patrick Wingate for $200 #885, dated 12-12-97, payable to Patrick Wingate for $100 #886, dated 12-12-97, payable to Jimmy Baker f or $100 #888, dated 12-12-97, payable to Patrick Wingate for $500 6

Based upon this evidence, the jury found the appellant guilty of bothfirst degree murder and aggravated arson.

I. Sufficiency of the Evidence The appellant’s argument regarding the sufficiency of the convicting evidence is threefold. First, the appellant contends that the majority of the testimony linking the appellant to the death of Steve Pugh was the testimony of co-defendant Jim B aker. The appe llant, referring to the numerous incons istencie s and self-serving statements provided by Baker, a rgues that this testimony is not credible. Secondly, he asserts that because there was no direct evide nce introduced at

tr ial, the evidence was insufficient as a matter of law to support the jury’s v

erdict of guilty

for the offenses of first degree premeditated murder, felony murde r and aggravated arson. Finally , he contends that the court erroneou

sly submitted t

he charge of f

elony murde

r to the jury as there was

an insufficient
nexus in the proof, beyond a reasonable doubt, between the causation of death and the “perpetration” of the alleged theft. In support of his argument, the appellant asserts that “ there was no proof that anything was taken from the decedent on the day of his death.” A. Appellate Standard of Review When reviewing the evidence for sufficiency , this court does not reweigh or reevaluate

the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Te n n. 1978). Rather, it is this court’s duty

to affirm the conviction if the evidence viewe d in the light most

favorable to the State is sufficient for anyrati onal trier of fact to have found the essential elements of the offense bey ond a reas onabl e doubt. See Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S.Ct. 743 (1995); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S.Ct. 1368 (1993) ; Tenn. R. App. P. 13(e). Moreover, once a defendant is convicted, the p resumption of innocence is removed and is replaced with

the presumption of

guilt so that on appeal the convicted defendant has the burden of demonstrating th

at the evidence i

s in suf ficient. State v. Tuggle

, 639 S.W.2d 913, 914 (Tenn. 1982).7 Before this court can sustain a conviction for aggravated arson as charg ed in th e present case, the proof must establish that the defendant, w

ithout the consent o

f all persons havi

ng an interest in a structure, damaged said structure by means of fire or explosion and that one or more persons 

### -6- Within his challen ge , the appellant re lies upon what he c

alls “the seriousl

y questionab

le
cr edibility

o f Jimmy Baker” in support of his argument that “there was no ‘web of g uilt’ woven around[the appellant.]” Moreover, he asserts that the over all la ck of proof does not support any “other reasonable inference save the guilt of the appellant bey ond a reasonable doubt.” During the trial, the jury heard the testimony of Bak er, which include

d numerous inconsis

tencies within his statements,and was left to evaluate the credibility of his testimony. I ndeed, on appeal, we pr

esume the jury performed thi s function as it is not the prerogative of this court to revisit questions of witness credibility. See generally State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1 995); State v. Boling , 840 S.W.2d 944, 947 (Tenn. Crim. App. 1992).
Moreover, although the evi dence in this case

is circumstantial, circumstantial evidence alone may be sufficient to support a conviction. See State v. Buttry , 756 S.W.2d 718, 821 (T enn. Crim. App. 1988); State v. Cooper , 736 S.W.2d 125, 129 (Tenn. Crim. App. 198 7). However, if a conviction is based purely on circumst

anti al proof, the fac

ts and circumstan

ces must be so overwhelming as to exclude any other explanation except for the defendant’s guilt. See State v. Blac k , 815 S.W.2d 166, 175 (Tenn.199 1); State v. Tharpe , 726 S.W.2d 896, 900 (Tenn. 1987); Cooper , 736 S.W.2d at 129. “It must establish such a certainty of guilt of the

accused as to convince the mind beyond a reasonable doubt that the [appellant] is the one who committed the crime.” Tharpe , 726 S.W.2d at 896. When revie wing circumstan

tial evidence, th

is court must

remember that the jury decides the weight to be given to circumstantial evidence and that “[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistentwith innocence are questions primarily for the jury.” Marable v. State

, 203 Tenn. 440, 313 S.W.2d 451, 456-57 (1958).

In the case s

ub judice, the evid

ence points uner

ringly to th

e appellant. There is no dispute that the appellant, Jimmy

Baker, and Jeff

Gibbs were with the

victim at his reside

nce immediately preceding the victim’s death and the fire. The appellant was alone with the victim in the shop and the last person to be seen with Pugh before he was murdered. The appellant confided to Bake r that he had “. . .hit Steve in the head.” The medical proof revealed that the victim was alive at the time the fire was started. The appellant changed his clothes befor e going to the Sher

iff’s Departme

nt. He later burned the

pants he was wearing at

the time of the murd

er. Proof place

d the appellant in possession of stolen checks of the victim. Numerous checks were written on the victim’s account payable to either Jimmy Baker or the appellant and were passed before and after the murder. FBI docu ment testin g revealed that the victim’s signature was not original and had been trace d. The appellant was observed “tr

acing” the vic

tim’s signature.

Police als o loc ated checks bel onging to Steve Pugh on Railroad Avenue which had been burned. Testing of the boots of the three men revealed the presence of gasoline, as did the testing on the boots of the victim. These fac tors would permit a rational juror to infer

beyond a reasonable doubt that the appellant committed the offenses of first degree murder and aggravated arson. 7 Infra. See Jackson v. Virgini a , 443 U.S. at

317, 99were present in the structure at the time of the offense. See Tenn. Code Ann. §§ 39-14-301; 39-14- 302.


### -7- S.Ct. at 2789; Tenn. R. App. P. 13(e). See generally Tenn. Code Ann. §§ 39-13-202(a) (1), (2) (1997); 39-14-301 (1997); 39-14-302 (1997).

B. First Degree Murder Before undertaking our review, we note that the jury foun d the appellant guilty

of both premeditated

murder and felony murder. Both crimes constitute first degree murder, see Tenn. Code Ann. § 39-13-202(a)( 1), (2); State v. Hurley , 876 S.W.2d 57, 58 (Tenn. 1993), cert. denied , 513 U.S. 933, 115 S.Ct. 328 (1994), as, they are but alternate means by which the offens

e may be committed. Hurley , 876 S.W.2d at 58. I ndee d, our supreme court has recognized that “[t]he perpetration of a fel ony, during which

a homicide occurs, is the legal equivalent of premeditation, deliberation and malice.” Strouth v. State , 999 S.W.2d 759, 768 (Tenn. 1999), petition for cert

. filed , (Jan. 5, 2000) (Hold er, J ., con curri ng) (ci tatio ns omi tted) . In a case involving a single killing where the jury has found the defendant guilty under both theorie s of first degree premeditated murder and felony murder, the trial court sho uld accept both

verdicts but enter only one judgment of conviction, thereby merging the two verdicts. See Carter v. State , 958 S.W.2d 620, 624-2 5 (Tenn. 1997); Stat e v. Addison , 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997), perm. to appeal denied , (Tenn. 1998). In the present case, the trial court en tered two judgments of con viction noting tha

t the two counts merged with one another.

Additionally, we acknowledg e that a gener

al verdict of gu

ilty is sustainable

if any one count in the indictment is sustained by the proof. See Tenn. Code Ann. § 40- 18-111 (1997). Accordingly, proof of either felony murder or

premeditated

murder is suffici

ent to sustain the conviction.

1. Premeditated Murder Once a homicide is established it is presumed to be second degree murder. State v. Brown , 836 S.W.2d 530, 543 (Tenn.1992). The State, then, has the burden of proving the elem ent of premeditation to e levate the o ffense to first degree murder. Id. Premeditation necessitates "the exercise of reflection and judgment," requiring a "previously formed

design or intent to kil l." State v. West , 844 S.W.2d 144, 147 (Tenn. 1992).

The element of premeditation is a question for the jury and may be inferred from

th e circumstances surrounding the killing. State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App.1993), perm. to appeal denied , (Tenn. 1994). Because the trier of fact cannot spec

ulate as to what wa

s in the killer's m

ind, the existence of facts of p remeditati on must be d etermined f rom the appe llant's conduct in light of the surrounding circumstances. State v. Johnny Wright , No. 01C01-9503-CC-00093 (Tenn. Crim. App. at Nashville, Jan. 5, 19

96). Although the

re is no strict standardgoverning w hat const itutes proof of premeditation, several relevant circumstances are helpful, including: the use of a deadly weapon upon an unarmed victim; the fact that thekilling was particularly

cruel; declaration by

the defendant of

his intent to

kill; and the making of preparations8 Again, in the present case, the jury

returned guilty

verdictsas to one count of premeditated first degree murder and

one count of first

degree felon

y murder. T

he trial court pro

perly merged the verdictsinto on e “judgment of conviction” for first degree murder. Thus, for appellate purposes the re i s on ly one judgment of conv iction before this

court. 

### -8- before the killing for the

purpose of conce

ali ng the crime. State v. Bland , 958 S.W.2d 651, 660 (Tenn.1997), cert. denied , --- U.S. --- -, 118 S.C t. 1536 (19 98) (citin g Brown , 836 S.W.2d at 541-42). Additional factors f

rom which a jury may infer pre meditation include planning activities by the appellant prior to the killing, the appellant' s prior relationsh ip with the victim, and the nature of the killing. Gentry , 881 S.W.2d at 4-5 (citation omitted).

Taken in the light most favorable to the State, theproof established that the victim had hired the appellant to perform odd jobs. The appellant an d Baker w ere in possession of the victim’s checks, had forged the victim’s name on the checks, and had obtained funds from thevictim’s bank
accoun t. On the da y of the homicide, the appellant was working at the victim’s residence. The victim and the appellant had been drinking throughout the wor k da y. The appellant was left alone in the shop with the victim. Thirty minutes later the victim was found dead inside the burning shop. The cause of death was multiple blows to the head. The vic

tim’s checkbook w

as underneath hi

s bod y. The appellant was later observe d fo rging some of the victim’s checks and burning other checks of the vic

tim.

After careful consideration

of all the facts and circumstances surrounding this homicide, we
are unable to conclude that the element of premeditation was estab lished . The State asserts that pre meditation is established by the fact that the appellant had cashed at least five c hecks on the vi ct im’s account (motive), the appellant displayed no emotion upon leaving the scene, a nd the infliction of multiple blows. In the instant case, we do not find these circu

mstances suffici

ent to establish premeditation. First, although some of the checks were cashed prior to the murder, there is no evidence that

the victi m or any ot

her party was aware that the illegal transa ctions had taken place. Indeed, the record does indicate that no foul play wassuspected regarding the victim’s bank account until after the homicide occu

rred. Moreover

, "[r]epeated blo

ws can be deliver

ed in the heat of passion, with no d esign or reflection." Brown , 836 S.W.2d at 542.

While we acknowledg

e that only a

moment of time

is required to formulate premeditation, the circumstances s

urrounding the m

anner of the killin

g in the present case do not support, beyond
a reasonable

doubt, th e conclusion that the appellant killed according to a preconceived design. Absent the element of premeditation, the jury’s verdict finding the appe

llant guilty

of premeditated murder is unsupportedby the proof and is insufficient to support the appellant’s conviction under count one of the in

dictment. 8

2. Felony Murder Again, the appellant contends that the court erred by in

structing the jur

y as to the offense of felony murder committed during the perpetration of a theft. He argues that there is an insufficient9 The 1995 Amendment to Tenn. Code Ann. § 39-13-202(a)(2), effective Ju ly 1, 1995,

removed the element of recklessness from the statute.


### -9- nexus in the proof between the causation of death and the perpetration of the alleged theft.

The appellant was convicted of felony murder in the perpetration of a theft. Felony murder is defined as “[a] kill

ing of another c

ommitted in the perpetratio n of or attempt to pe

rpetrate any
.

. . theft . . . .” Te nn. Code Ann. § 39-13-202(a)(2) (1996 Supp.) (emphasis added). 9 To hold a principal liable under a theory of felony murder, the State must prove morethan the commission of
a felony foll

owed by an u

nla wful k illing. The prosecution must show a sufficient causal nexus betweenthe felony and the murder to prove that the killing took place as part of the perpetration of the felony. Something more than a mere coincidence of time and plac e betwee n the wrongful act and the death is necessary. See State v. Farmer , 296 S.W.2d 879, 883 (Tenn. 1956). It must appear that there was such actual legal relation between the killing and the crime committed or

attempted that the killing can be sai d to have occ urred as a part o f the perpetrat

ion of the crime, o

r in f urtheranceof an attempt or purpose to commit it. See Marshall v. United States , 623 A.2 d 551 , 560 (D.C. 1992). Within th e context of the fe

lony murder

rule, the felony

and the homicide mu

st be part of a

continuous transaction, that the homicide be incident to thefelony, or that there be no break in the chain of

events between the felony and the homicide. See generally

Edwin S. Barbre, Annotation, Wh at

Constitutes Terminati

on of Felony for Purp

ose of Felony-Mu

rder Rule , 58 A. L.R.3d 851, 856, 865-874 (1974). The res gestae embraces not only the actual facts of th

e transaction and the circumstances surrounding it, but also the matters imm

ediately a ntecedent to

the transaction and having a dir ect causal conn

ection with it, as we

ll as acts im mediately f

ollowing it and so closely c

onnected as to fo

rm in reality

a part of the occurrence. Payne v. Stat e , 406 P.2d 922, 925 (Nev. 1965). I

n short, whether there is a sufficient causal connection between the felony and the homicide depends on wh ether the principal’s felony dictated his conduct which led to the homicide. Marshall , 623 A.2d at 560 (quoting W. LaFave & A. Scott, Handbook on Criminal Law § 71 at 557). We acknowledge the appellant’s reliance on State v. Terry , 813 S.W.2d 420 (Tenn. 1991). In Terry , the defendant, a c hurch pastor, embezzled substantial sums of money from his congregation
over a period of

time. Eventually, he killed the church handyman, placed the body inside the church, and torched the building. At the sentencing hearing, the jury found the felony murder aggravating circumstanceon the basis of the underlying

larceny. The trial court granted the defe ndant’s motion for a new trial,

finding that the State had failed to prove that the murder was committed while the defendant was engaged in the perpetration of larceny . The supreme court agreed that there was an insufficient

nexus between the murde r a nd the larceny. In so holding, the court stated tha t application of the felony murder aggravating circumstance depends upon the temporal, spatial, and moti vational relationships between the murder and the collateral felony. See State v. H all , 95 8 S.W.2d 679, 693 (Tenn. 1997), cert. denied , 524 U.S. 941, 118 S.Ct. 2348 (1998 ) (citing Terry , 813 S.W.2d at 423).10 Although the value of the checks is irr el evant in the present case, as the purpose of valuation is limited to grading the offense for sentencing purposes, see Tenn. Code Ann. § 39-14- 105 (1997), we acknowledge that the “value” of the stolen che cks is “[ t]he greatest amount of economic loss that t

he ow ner might reasonably suffer by virtue of loss of the document, if the document is other than evidence of a debt.” Tenn. Code Ann. § 39-11-106((36)(B)(ii) (1997). 

### -10- Again, the appellant, in this case, was convicted of murder in perpetration of theft. See Tenn. Code Ann. § 39-13-202(a)(2). A person commits theft if he "with intent to deprive the owner of pro pert y, ... knowingly obtainsor exercises cont rol over the prope

rty without the owner's effective consent." Tenn. Code Ann. § 39-14-103 (1997). The proof at trial revealed that the appellant was in possession of

checks for the bank account of Steve Pugh. He later destroyed some of these checks and attempted to pass others. It was for the jury to determine whether or not the murder of Steve Pugh was committed in pe rpetration of the

ft of the checks. 10 Additio nal ly, applying the factors
enum er atedin Terry

to the circumstances of the present case, we find the proof is more than sufficient to establish a sufficient nexus between the under lying felony

of theft and the murder of Steve Pugh. The victim of the murder was a

lso the victim of the

theft. It can reasonably be inferred from the circumstanc

es that the victim wa

s killed because h

e could expose the theft, thwart

the theft,
or interfere with thecommission of the theft. See generally Terry , 813 S.W.2d at 424. Finally, by the undisputed evidence of the checks forged prior to and following the

murder, the murde

r was a part of the appellant’ s continuing sche me to steal checks and ultimately the victim’s funds by means of forgery. Se e Tenn. Code Ann. § 39-14-103. For these reasons, the evidence is more than sufficient to establish that the murder of Steve Pugh was committed during the perpetration of the theft. See Tenn. Code Ann. § 39-13-202(a)(2); Tenn. R. App. P. 13(e). Th is issue is without mer

it.

II. Statement of Baker On direct examination by the State, Jimmy Baker r

elated that,

on the day of Pugh’s murder, he left the app ellant and Pugh in the shop while he went to hisvehicle for more beer. When he was returning to the shop, t he appellant met him at the door, stating that he was ready to go. B aker testified that, at this point, he observed Steve Pugh lying on the floor inside the shop. When asked by the prosecutor if he, at this time, was “scared,” Baker replied affirmatively , although, he conceded that he did not believe t

hat Steve Pugh wa

s dead. During d

efense counsel’s cross-examination of co-defendant Baker, the following colloquy occ urred: Q: All right. And I think earlier, wh en Mr. Crigler, was talking to you, y ou made the comment at that point that you were scared—
Baker: Yes, sir. Q: –right. And I’m assuming that you were scared because you thought

there might have

been some foul pla

y there of s

ome sort; is that rig

ht?
Baker: Yes, sir, because he’d done killed one man and that shook me up.11 The curative instructive provided:

La dies and gentlemen of the jury, the last response of the witness concer ni ng th e defendan thaving killed an other is inaccur

ate. Even thoug

h the witness may

truly believe his statement, you are instructed that the statement is not true under the law. You are not to cons

ider whether the

statement was tru

e or not. 

### -11- (Emphasis

added). Defense counsel requested a side-bar conference

and raised an objection to the witness’ answer and moved for amis tri al. The cou rt o verr ule d th e mo tio n an d gav e th e ju ry a curative instruction. 11

In his final issue, the appellant asserts as error the trial court’s failure to grant a mistrial “when witness Baker stated to the jury that the Appellant ha d killed someone before. . . .” The appellant contends that Baker’s response to counsel’s question was non -responsi ve and highly prejudicial to the appellant. Additiona lly, he conte nds that the trial c

ourt’s instruction

is of little value as “it is essentially impossible to ‘unring’ the bell.”

In denying the motion for mistrial, the trial court based its ruling on the following reasons: ...this is a matter that is a discretionary call with the court. . . . To reiterate tho se factors that the Court has taken into consideration. . .is whether or not the allegations
are true or believed to be true; in other words, w het her the testimony offered is truthful testimony by the witness. And in this case, alth ough it may n ot be legally true in th e sense that there was no conv iction, it is obvious . .

. that [the witness] believed them to be true.

The next question is whether or not –or the motive behind the testimony that was offered to which the defendant objects. If the motive behind that was to impart to the jury that the defendant is a bad person and, consequen tly, shou ld be convicted because he is a bad person

, then, in the Co

urt’s mind, th at would be grou nds to declare a mistri

al.

But in this case, the witness was answering a question posed to him by counsel for the defense. Now, counsel for the defense says, “But I didn’t want that a nswer,” or “That wasn’t what I’m asking.”

Sometimes we fail to

realize, as attor

neys,that lay persons and lay witnesses are not as sophisticated as we who frame the questions are in their answers. And the answer that the witness respon

ded to was, in part, an answer to the question, and that is an imp lic ati on t hat , we ll, were you s care d be caus e th ere h ad b een f oul pla y?

. . . A third factor that the Court should consider is the source of the question. Had the Stateelicited this infor

mation, even so, it w

ould have been a c

lose question. But

in

### -12-

notrequesting a jury-out hearing before the information was e

licited, it would have posed a much different question. But here, the defense is responsible for th e inf orm ati on b ein g im part ed t o th e ju ry.
Fin all y, the Court has to consider whether the probative effect or value is outweighed by the prej udi cia l ef fect tha t it mig ht h ave u pon the jur y. And I guess cor ollary to that is whether that pr

ejudicial e

ffect can be minimized and, if so, how it could be minimized.

. . .[T]he Court still belie

ves, that the State ’s case

against this defendant will rise and fallon this witness. The witness that the State has produced, from the evidence that the jury has heard so far, they will decide whic h of these two indiv iduals is responsible

for the death of Steven Pugh, and it’s going t o be a question of cred ibi lit y.

. . . And given the collat

eral facts that t

he jury has h

eard so far – an

d counsel has done a very able job of pointing out to the jury that the f inger points almost equally.

. . . Con seq uen tly, there is damaging information that are potential issues to this trial that touch upon the credibili

ty of the witn

ess, such that to wit

hhold tha t information might leave the impres sion on the jury that the witnessis not being truthful, and credibility

is the issue, then the probative value of that testimony is extremely high, even though the prejudicial effect may be hig h.

. . . Now, the next question is wheth er or not the prej udicial effect o f this information can be minimized with some

curative instruc

tions.

. . . The curative instructions which the Court g ave . . . accompli

shed all of those g

oals and the prejudicial effect has been minimized.

A mistrial should be declared in criminal cas es onl y in the even t that a manifest ne

cessity requires such action. State v. Millbrooks , 819 S.W.2d 441 (Tenn. Crim. App. 1991). In other word s, a mistrial is an appropriate remedy when a trial cannot continue, or a misca rriage of justice would result if it did. State v. McPherson , 882 S.W.2d 365, 370 (Tenn. Crim. App.1994). The decision to grant a mistrial lies within the sound discretion of the trial court and this court will not interfere12 We acknowledge that the trial court, pursu

ant to Tenn. Code An

n. § 40-35-201(b) (2)(A)(i) (1997) instructed the jury to “weigh and con

sider” the minimum n

umber of ye

ars the defenda

nt must serve before reaching such person’s earliest release eligibility date. This provision was repealed by our legislature effective May 18, 1998. The appellant’ s trial took place September 1998. 

### -13- withthe exercise

of that discretion absent clear abuse appearing on the face of the re cord. See State
v. Hall , 976 S.W.2d 121, 147 (Tenn. 1998), cert. denied , – U.S. –, 1 19 S.Ct. 1 501 (1999) (citing State
v. Adkins , 786 S.W.2d 642, 644 (Tenn. 1990)). Moreover, the burden of establishing t

he necessity for mistrial lies with the party seeking it. State v. Williams , 929 S.W.2d 385, 388 (T enn. Crim. App. 1996).

Init ial ly, we note that the statement complained of was unsolicited by the State, rather, it was elicited by

the defense on cross-examination of the State’s witness, co-defendant Baker. Moreover, the tri al court th oroughly i nstructed the jur

y as to why

they were

not permitted to con

sider this statement in their delibera

tions. The jury

is presumed to have

followed the tr

ial court’ s curative instructions,

absent evidence to the contrary. S tat e v. Smith , 893 S.W.2d 908, 914 (Tenn. 1994), cert. denied , 516 U.S. 829, 116 S.Ct . 99 (1995); State v. Williams , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). With these considerations, we conclude that Baker’s statement was not s o unduly prejudicial so as to warrant a mistrial. Accord

ingly, the t

rial court did

not abuse

its discretion in denying th

e appellant’s moti

on for mistrial. Thi

s issue is without mer

it. Finding no error of law requiring reversal, we affirm the appellant’s convictions for f i rs t degree murder and aggravated arson. 12 Having found the jury’s verdict for premeditated first deg ree murder insufficient as a matt er of law, we remand for entry of a modified judg ment reflecting the appellant’s conv

iction for felony

murder under co

unt two of the indict

ment.