# FILED
October 28, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON AUGUST 1999 SESSIO N

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 02C01-9804-CR- 0 011 0 ) vs. ) Shelby County ) JOYCE M. LINDSEY, ) Hon. James C. B easley, Jr., Judge a/k/a JOYCE WADE , ) ) Appellant. ) (Second Degree Murder, ) Aggravated Kidnap ping, Theft, Forgery)
FOR THE APPELLANT: FOR THE APPEL LEE: MARTI L. KAU FMAN PAUL G. SUMMERS WILLIAM N. M ONROE Attorney General & Repor ter CHRIS HAMI LTON Attorneys at Law J. ROSS DYER 5350 Poplar Ave., Ste. 102 Asst. Attorney General Memphis, TN 38117 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General THOMAS L. H ENDERSON JENNIFER S. NICHOLS Asst. District Attor

ney General 201 Poplar Ave., Third Fl. Memphis, TN 38103 OPINION FILED:________________
AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE1 Our presentation of the issues e mploys different wording and order than that contained i n the defe ndant’s brief. OPINION The defendant, Joyce M. Lindsey a/k/a Joyce Wade, appeals from the
seco nd degree murder, aggra vated kidnapping, forger y and theft convictions s he received at a jury trial i n the Shelby Cou nty Crimina l Court. The defendant is presentlyserving an effective 33- year sentence in the Depar tment of Correction for her crimes. In her direc t appeal, she raises these i ssues for our consideration: 1 1. Whether the trial court properly denied the motion for judgment of acquittal on the second deg ree murder and aggrav ated kidnapping convictions. 2. Whether the trial court properly denied the defendant’s motion for change of venue. 3. Whether th e trial court properly admitted evidence of the defendant’s hard feelings towards her sister as evidence of the defendant’s motive. 4. Whe ther

the trial court properl y declined to giv

e the defendant’s proposed special jury instructio ns on DNA evidence and corpus delicti

. 5. Whether the trial c ourt prop erly impos ed conse cutive sentences. Having reviewed the record, the briefs and oral arguments of th e parties, and the applicable law, we

affirm the judgment of the trial cour t.

The case before the court has been the s ubject of intense local interest in Shelby County and has received national media ex posure on the television programs Unsolved Mysteries and The Maury Povich Show . It is a tragic case inv olving crimes agains t child ren and the divi sion of a family agains t itself.

The state ’s evidence at trial establ ished the following. The mur der victim, Ashley Lashay Jones, w as the defendant’s four-year-ol d niece. The aggravatedkidnapping victim, Erica Nicole “Niki” Man ning, is the defendant’s then twelve-year-old niece. The theft and forgery v ictim, Vicky Lee Mor

ris, is the3

defendant’s sister. Ms. Morris is th e mother of the murder and kidnapping victims.

In September 1996, the defendan t’s life was in disarr ay. She was livingin North Carolina, w here she was in a troubl ed marriage. The defend an t contacted her mother, who lived in Memphis, about g oing to Memphis

to get h er life together. Arrangements were made, and on S atur day, September 14, 1996, the defendant checked into a Memphis motel. The defendant called h er sister V icky Morris. The defendant was very i ntoxicated, and she did not want to

see her sister until the following day. At the appointed hour that next day, Ms. Morris went to the motel. Ms. Morris found the defendant drunk and appa rently pregnant. Ms. Morris inquired whether

the defendant was pregnant, and the defendant affirmed that she
was. The defendant agreed to come to the Morris home, where Vicky Morris lived with her hus ban d, Carl Morris, and he r children, four-year -old Ashley and twel

veyear-old Niki.

When they arrived at the Morr

is home, Ms. Morris t ried to sober up the defendant by giving her food and coffee. Later that evening, Niki and Ashley spent time getting to know thei r Aunt Joyce. This was the first time Ashley had ever seen her Aunt Joyce, and t he little girl w as instantly enamored of the defendant. The defendant made plans totake her nieces shopping the following day after Niki got home from school and obtained Ms. Morris’ permission. The defendan t also obtained permission for Ashley to stay home

from her babysitter the follo wing day
so that she and the child could spend time together. Ms. Morri s called the babysitt er and inf ormed he r that Ash ley would be staying ho me on Mon day.

On the morning of Monda y, S eptember 16, Niki left for school . The Morrises left the house for work, and As hley and the defendant were l eft alone in the Morris home. Around 9:00 or 9:30 a.m., Ms. M orris called home to check on the4

defendant and Ashley, and the defenda nt told Ms. Morris about w hat Ashley had been doing. Ms. Morri s thought she heard Ashley in the background. Foll owing the Morrises’ departure from home that morning and Ms. M orris’ phone call, Ashl eywas never seen nor heard from again.

Around 3:15 p.m., Niki arriv ed home from school and found her Aunt Joyce under the influence of alcohol. When Niki inquired w here her sister was,the defendant told her that the babysitt er had picked up Ashley. Niki phoned a friend, but the defendant wasanxious to leave the hous e and insisted that Niki fin ish her phone call quickly.

The defendant told Niki that they we re going shopping. The pair went in the d efendant’s vehicle to a gas station, where the defendant used a pay telephone outside Niki’s presence. The defendant phoned Ms. Mor ris and inquired whether she could cash a check at Ms. Morri s’ bank. Ms. Morris had another call and had to place the defendant on hold before the conv ersation was complete, and the defendant hung up before Ms. Morris was able to return to the call.

With Niki’s assistance, the defenda nt locat ed Ms. Morris’ bank, but she was unable to cash the chec k she presented. According to Niki, the defendant tried to get money “out of my mother ’s bank account.”

The defendant tried to locate another bank, but she was unsuccessful.

Eventual ly, the defendant went to a gas station andmade some calls
on a pay phon e. The de fendan t inquired of Niki whe ther Ms. Mo rris wo ul d be at home or at work at that ti me, which was around 4:30 p. m. When Niki told the defendant her mother would be at w ork, thedefendant had Niki call the Morris home and leave a message that they were out shopp ing. The defendant also told Nik i to5

say that she was tryin g to talk thedefendant i nto staying in a mot el that evening, and the defendant would take Niki to school the following day.

After this phone call, the defe ndant and Niki began traveling toward Nashv ille

. During this ride, as well as earlier in the afternoon, Niki observ ed her aunt drinking several bottles of Zima, an alcoholi c beverage.

Near Dickson, the defendant’s vehi cle had a flat ti re . An off-duty highway patrol officer stoppedto offer assistance. The defendant told him she did not have a spare tire. The officer called a tow truc k for the defendant. While they
were waiting for

the tow truck driv

er, Niki askedthe defendant if she could call her mother, but the defendant told her no.

When the tow truck driver arrived, the defendant told him she did not have a spare tire. Therefore, the driver had to tow the defendant’s car. While the driver wasgetting the defendant’s car on the back of his truck, the defendant s tood outside on the na rrow s houlder of abridge on Interstate 40 watching the driver. The driver found this unusual, as most women for whom he performs this service wait inside the cab of the truck.

Once inside the truck, the defendant and Niki told the tow

truck driver
a story concocted by the defend ant that t he two were mother and daug hter and
w ere escaping fr

om an abusiv

e home. One of th e two show ed the driv

er some photog raphs of the defendant with bruises and t old him the defendant’s hu sban d had inflicted the injuries. This story apparently aroused sympathy in the tow truck driver, and he assisted the pair by taking them to a bank, whe re the def endant wit hdrew money with an ATM card,taking them to a fast food restaurant t o pur chase d inner, and finding them an inex pensive motel room for the ev ening6

because all of the tire stores in Dickson were closed . Furth erm ore, the tow truck driver offered to bring the defe ndant a t ire from his uncle ’s junk yard the next morning so that he would not have to charge her for towing her to a tir e store.

At the motel, the defendant did not want to go inside to check in. She gave the money to the driver and asked him to do it for her. When he came outside and stood at the rear of the defendant’s v ehicle to get the licenc

e plate number for the motel registration, the defendant got out of the truck and asked what the driv er was doing. Wh en the tow truck driv er unloaded the defendant’s car in the motel parking lot, the defendant watched the driver perform the task.

That night, Niki asked the defendant for permission to call Ms. Morris, but t he defendant said, “No, just wait because we’ll be back tomorrow.” When i t
was time for bed, the defendant had Niki go outs ide t o get a nightgown fro m the trunk of the defendant’s car. The car was backed into a parking space outside the motel room door so that the trunk was facing the door

. There were bags of clothes in the trunk of the car, and Niki did not look underneath them. The defendant stood in the doorway and told Niki in which bag

to find the nightgown.
Shortlyafter 7:00 a.m.the next morning, the defendant paged the tow truckdriver, who broug ht the junk yard tire and mounted it on the defendant’s car. The defendant had the tow truck dri ver put the old ti re in the b ack seat on top of
some clothing,rather than in the trunk. Th e tow truc k driver then went with the defendant and Niki to a tire store, wher e he spoke with the owne r about an inexpens ive tire. When the new tire was mounted, the defendant told the mech anic to put the old tire in the backseat, rather than in the truck. Before leaving the tire store, the defendant inquired about the loc ation ofa laundromat, and the tow truck driver pointed out one that was down the street.7 The defendant and Niki began trav eling toward M e mphis. In Somerville, the defendantstopped at a discount store and purch ased laundry soap, rubbing alcohol and two bottles o f bleach. She took Niki to a laundr omat and told her to wash theclothes from the back seat of the car. The defendant said she was going to wash the car and left Nik i alone at the laundromat. The defendant left the laundrysoap with Niki, b ut she took the bleach with her. About an hour later, the defendant returned to the laundromat, and Niki noticed that the c ar wasnot clean. When she asked about this, the defendant tol d her the line had been too long . The d efendant wa shed some more clothes from the car. W hile the clothes were washing, the defendant began cleaning out the car. When the defendant opened the trunk, Niki noticed that there was no carpeting inside and there was an odor of bleach. The defendant told Niki she had accidentally knoc ked over thebleach. Niki also saw a spare tire in the trunk and asked her aunt why they had not used it when they had the flat tire. The defendant said she had forgotten about it. Niki and the defendant loaded all of the clothes b ack into the car and returned to Memphis.

When they reached the Morri s residence at abo ut 4:00 p.m., the defendant let Niki out but drove away. When Niki came i n the house, Vicky and Carl Morris, who had by this time alerted the authorities that both Ashley and Niki
were missing, inquired about Ashley. Niki r eported what the defendant had told her, that Ashley had been picked up by the babysitter. Ms. Morris knew this could not be true, because eit her she or her husband transpor ted Ashley to and from the babysitter

each day. Ms. Morr is instructed her husband to chase down the defendant, and Ms. Morris cal led 911.

Carl Morris was able t

o locate the defendant and bring her back to the house. A police officer arriv ed, and he observed the defendant make att empts to getto her car. Becau se emotions were high , the officer had to separate the2 In a statement to a detective of the Shelby County Sheriff’s Department,

the defendant said she had called Ms. Morris to see if she could write a check and sign Ms. Morri s’ name on it. The defendant admitted she and Niki went to the bank to cash the check, but th e bank would not cooperate.

3 Because Ashley Jones’s bod y was never rec

overed, a direct sample of her blood was not avai lable. 8 Morrises and Niki from the defendant by plac ing the defendant

in the back seat of his patrol car. Later, the officer discovered a loaded .45 semi-automatic pistol which
was cocked and in a locked position in side the defendant’s purse, which had been inside the defendant’s car. The defendant was arrested that ev ening for kidnapping Niki. The defendant’s car was tow ed to a secure location that eve ning. The officer recalled having opened the trunk of the car and smelled a very strong bleach odor.

A subsequent search of the defendant’s c ar revealed a

box of checks which belonged to Ms. Morris, a check book belonging to Ms . Morris, a check written on Ms. Mor ris’ account made payable to the defendant and bearing Ms. Morris’ name in the signature field in the defend ant’s handwriting, 2 and Ms. Morris’ class ring. More sign ificantly, blood spatters were discovered i n the trun k of th e vehicle. Subsequent DNA testing of samples taken from the spatters w as performed in conjunction with t esting of samples

of A shley Jones’s mother’s and father’s blood. Accord ing to the state’s expert from the Tennes see Bureau of Investigation, the probability that the blood spatters came from a biol ogical child of Ashley Jones’s mother and father was 99.9 percent. 3 Ashley was the only child of Ms. Morris and Brian Jones, the father.

While the defendant wasin pre-trial detention, she wrote letters to a male inmate. In a letter dated May 15, 1997, she wrote, “I just came fro m being charged with 2 nd degree murder, there was a blood spots the size of a quarter where Ashley cut her fingers .” In a letter dated June 25, 1 997, the defendant wrote,9 You See the 4 year old & I w ent to the store & she cut her hand on Broken Glass behind my se at I to ok & wrap her hand in a Bl anket Until it stop Bleeding

& then putthe Blanket in the trunk Ashley kept pushing the trunk Button in the glo ve Box & it w

as ra ining and storming Bad the Blanket Flapped agains t the trunk lid leavi ng Blood spot that you can’t see wi th your eyes its microscopic. Because they could not find her & she was abdu cte d Alan they charged me w ith murder. In an undated letter, the defendant wr ote, “The liner

of my trunk

(Rubber Seal) has Spots of blood on i t. Can they charge me with murder without a body? I haven’t murder Any one Ashley cut her hand on Glass in my car & she wasswing her

arms every which w

ay.”

At trial, Vicky Mor

ris testified about a

possible motive for the crimes. According to Ms. Morris, she wasa single parent in the s ummer of 1989 when she was asked by

the Department of Human Services to accept tempor ary custody of Tammy, the defendant’s five or six-year-old daughter. Ms. Morris was promis e d financial assistan ce from D HS for Ta mmy, but s he never re ceive d any . Because maintaining both Niki and Tammy and payi ng for their day care on her meager incomewas impossible, she su rrendered Tammy back to DHS after about a month. Tammy was placed in a foster home, and eventually, her father was awarded custody through judicial proc

eedings. In February

1996, t he d efendant was in Memphis to transport her sister Teresa to Asheville, North Carolina. She and Ms. Morris saw each other, and the defendantwas very col d to Ms. Morris. Tw o months later, in April 1996, the defendant told Ms. Morris dur

ing a phone conversation that her behavior

in February had been occas ioned by Ms. Morri s having ruined her life byassistingTammy’s father in gaining custody of the child. The defendant bec ame very emotion al during t his conver sation. Ms. Morris tr ied to exp lain why she had surrendered tempor ar y custody of Tammy back to D HS and that she had not assisted Tammy’s father in pursuing custody. Finally, Ms. Mor ris testified that when Tammy was four, she bore a str ong resemblance to Ashley at the same age.10 In response to the state’s proof, the defense offered the testimony of
an expert in interpretationof DNA autoradiograms who challenged the state’s DNA evidence. This expert conceded that DNA from the blood found in the defen dant’s trunk was consistent wi

th the offspring of Ashley’s mother and father; ho wever, he opined that the probability of thi s DNA be ing consis tent with “a lot of people” was much higher than was adv anced by the state’s expert. He opined the DNA pattern
was found in one in forty unrelated people, and he opined that the f requency would be even greater among re lated individuals. F urthermore, he found other samples which the state contended were co ns istent with the offspring of Ashley’s parents either inconclusive o r too degraded for use.

With this evidence before it, the jury conv icted t he defendant of second degree murder of Ashley Jones, aggravated kidnap ping of Niki Mannin g, theft of property under $500 for the per sonal checks belonging to Vicky Morris , and forgeryforthe check written on Vi cky Morris’ acc ount that the defendant attempted to cash.

At a subsequent sentencing hearing, the trial cour

t imposed a24-year sentence for second degre e murder, nine years for aggr avated kidnapping, one year for fo rgery, and six months for theft. Findi ng the defendant a dangerous offender, the court imposed consecutive sentences for s econd degree murder and aggravatedkidn apping , to be served concurrently to the theft and forgery sentences.
Followingthe trial court’s denial of a motion for judgment of acquittal and motion for new trial, the defendant f iled this appeal.

I11 The defendant’s fir st issue is whether th e trial cou rt should have granted her motion for judgment of acquit tal on the second degree m urder and aggravatedkidnapping convictions. A motion for judgment of acquitt al is a question of the sufficie ncy of the st ate's evid ence of the defendant's guilt of the crime charged. State v. Hall , 656 S.W .2d 60, 6 1 (Tenn. Crim. App . 1983). Accordin gly, the standard for determining whether a motion for

judgment of acquittal should be granted is analogous to the standard employed in rev iewing the

sufficiency of the convictingevidence after a convic tion has been imposed. See State v. Jerry Burke , No. 02C01-9510-CR-00319, sli p op. at 10-11 (Ten n. Crim. App., Jackson, Dec. 12, 1996), perm. app. denied (Tenn. 1997); State v. Adams , 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995). Thus, we employ the familiar sufficiency of the evidence standard in resolving

this issue.

When an accused challenges the suffic iency of the evidence, an appellate court’s standard of review is whether, after consideri ng the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime bey ond a reas onable doubt. Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 ( 1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). Th is rule applies to findings of guilt based upon direct evidence, ci rcumstantial evidence, or a combination of

direct and circumstantial evidenc

e. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).
Moreover, a criminal offense may be establish ed exc lusively by circumstantial evidence. Duchac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones , 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire , 634 S.W.2d 608 (Tenn. Crim. App. 1987). How ever, before an accused may be convicted of a criminal offense based upon circumstantial ev idence a lone , the facts and12

circumstances

"must be so strong and cogent as to exclude

every other reasonable hypothesis save the guilt of the defendant." State v. Crawford , 225 Tenn. 478, 470 S.W.2d 610 (1971); Jones , 901 S.W.2d at 396. In oth er word s, "[a] web of guilt must be woven around the defendant from which he cannot esca pe and from which facts and circumstances the jury could draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt." Crawford , 470 S.W.2d at 613; State v. McAfee , 737 S.W.2d 304, 30 5 (Tenn. Crim. App. 1987).

In determin ing the su fficie ncy of t he evidence, this court s hould not reweigh or reevaluate the evi dence. State v. Ma tthews , 805 S.W .2d 776, 77 9 (Tenn. Crim. App. 1990). Questions concerning the credibi lity of the witnesses, the weight and value of the ev idence, as well as all factual is sues raised by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from the evidence. Liakas v. State , 199 Tenn. 298, 3 05, 286 S .W.2d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate view of the evidence contained in the record as well

as all reasonable and

legitimate inferences which may

be drawn from the evidence. Cabbage , 571 S.W.2d at 835.

A. Second Degree Murder

As relevant to this case,second degreemurder is “[a] knowing killing of another . . . .” See Tenn. Code Ann. § 39-13-210(a)(1 ) (1997).

The defendant’s contention on appeal is that the corpus d eli cti was not
e stabl ished beyond a reasonable doubt; ther efore, the conviction cannot s tand. Corpus delicti , meaning literally

“the body of thecrime,” consists of two elements in
a homicide case: (1) that there has been a death of a human being, and (2) that the13

death was produced by cri minal agency. See, e.g. , State v. Shepherd , 862 S.W.2d 557, 564 (Tenn . Crim. App. 1992). Corpus delicti must be established beyond a reasonable doubt. Id

.

In her argument, the defenda nt ma kes numerous allegations which she says point to insufficiency of evidence of the corpus delicti . T he he art of her complaint, however, relates to conviction in the absence of the vic tim’s body. Recently, this cour t held in another second degr ee murder case, “The failure to
recover a victim’s body sh ould no t b e fatal to the prosecution of a homici de. Requiringa body would afford absolute immunity to defendants who are cunning enough to destroy the body or otherwise conceal its identity.” State v. Kenneth Patterson (Pat) Bondurant , No. 01C01-9501-CC-00023, slip op. at 15 (Tenn. Crim. App., N ashville, May 24, 1996), perm. app. denied (Tenn. 1996). Thus, th e absence of a body, standing alone, is not fatal to the prosecution of this case. See generallyCharles E. Torcia, 1 Wharton’s Criminal Law (15 th ed.1993) (note 36 and accompanying text).

W e predica te our analysis of the ev idence by reiterating

that we review the evidence in the light mos t favorable to the state. Many of the specific challengesthe defendant raises would req uire us to do otherwis e. To be sure, the evidence in the light most favorable to the state demonstrates that f our-y ear-ol d Ashle yhad been missing for approx imately fourteen months at the ti me of tr ial

. There had been extensive publicity of her disappear ance and diligent police pursuit of all credible leads. The defendant had recently express ed her ill will t

owards her sister, the victim’s m ot her, over a child custody order involving the defendant’s daughter. On the day of Ashl ey’s disapp earance and the following day, the defendant behaved peculiarly. She told Niki that the babysitte r picked u p Ashley, but this proved false. Furthermore, the defendant, who had not met the babysitter14

and was aware that the baby sitter had been notified she would not

be responsible forAshley that day, did not call Ms. Morris when Ashley allegedly got into a vehicle
on the stree t. The de fendan t was anxiou s to leave t he Morris h ome wh en Nik i arrived home from school. The de fendan t went to pay telephones, looked for banks, and drove east until she had a flat tire in Dickson, despite the fact she was supposed to be taking Niki shopp ing at a mall and K-Mart store near

the Morris home in Shelby C ounty. The defendant was evasive with Ms. Morris by having Niki leave a message on the home recorder,rather than calling Ms. Morris at work.She continued this evasiveness by taking Niki out

of town overnight w

ithout permission, telling the people she encount ered that she did not have a spare tire when there
was one inside her trunk, and droppi ng Niki off at the Morris residence and driving away even though an explanati on was owed to the Mor rises about

the overnight trip and Niki’s absence from school that day. The defendant was very watchful of the tow truck driver, particularly when he was around the t runk of her car. She hadthe tow truck driver and the mechanic at the tire store place dirty tires on cl othing in the backseat of the car, rather than in the trunk. When the defendant had Niki get a nightgown out of the trunk of the car, she w atched the girl from a short distance and told her exactly wh ere t o look. Before returning to Memphis, the defendant went alone to clean her

car and returned with it still dirty but the trunk smelling strongly of bleach and absent of its carpeting. Blood which was , in all reasonable probabi lity, Ashley’s was found spat tered inside the trunk of the def endan t’s car. An expert in blood spatter interpretation opined that some of the stains in the trunk
were inconsiste n t with the defendant’s theory that they were made by a bloody blanket. One of the stains was consi stent with a hair tran sfer pattern. Ashley’s dolls were found in the passenger compartment of the defendant’s car.

Furthermore, the record is devoid of any indication Ash ley died by accidental means , self-inflicted injury or natural causes. See Shepherd , 90215

S.W.2d at 901. The finger cut described in the defendant’s letters to her jailhouse pen pal does not raise any reasonable suspici on of a fatal, accidental injury. No other evidence raises any suspici on of accidental injury. The mere absence of the four-year-old’s body under these circumst ances indicates foul pla y. Further, it is beyond belief that a four-year-old is capable of committing suicide . There is no indication whatsoev

er that Ashl ey was te rmi nal ly ill; indeed, such would be exceedingly rare in a child of tender years.

All of this evid ence leads to only one reasonable end, albeit unfortunate, that Ashley Jon es is dead and that she met her death throug h the defendant’s criminal act. Thus, the evidence sufficiently supports thedefendant’s conviction of second degree murder, and the trial court properly denied the motion for judgment of acquittal.

B. Aggravated Kidnapping

Next, we examine the suffici ency of the aggravated kidnappin g conviction. As relevant to the facts of this case, “[a]ggravated kidnapping is false imprisonment, as defined in § 39-13-302, committed . . . [w]hile the defendant is in possession of a deadly weapon or threatens the use of a de adlyweapon.” Tenn. Code Ann. § 39-13-304(a)(5) ( 1997). False imprisonment i s committed by one “who knowi ngly

removes or confines another u nlawfully so as to i nterfere substant iall y with the other’s liberty.” Tenn. Code Ann. § 39-13-302(a) (1997).

Once again, the defendant’s argument in large part asks us to reweigh the evidence. As

stated a bove, thi s we cannot do. The evidence in the light most favorable to the state proves t hat the defendant exceeded the scope of her supervisory author

ity over Niki Manning. Rather thantaking Niki shopping for the afternoon at a n earb y mall and K-Mart stor e, the defendant took Niki half-w ay4 The defendant spent a great deal of effort at tri al attempting to question

whether there was oppor tunity for the gun to hav e been placed inside the defendant’s purse after the episode w as over. Howev

er, a detective testified that Niki reported having seen the gun inside the defendant’s purse when they were at the bank attempting to cash a check. Further, the defendant ack nowledged to a detective that she had the g un with her before leavi ng North Carolina and coming to Memphis. 16 across the state on an overn ight trip that last ed through the following day, when Niki should h ave been at school. The defendant induced the child to leave the Morris home with her by promis ing a shopping trip, an d the defen dant’s status as “Aunt Joyce” concealed from the child that she w as being taken from her home with ou t her mother’s and st ep-father’s co nsent and fo r some other pur pose than shop ping. The defendant did not allow Niki to call home despite the child’s repeated requests. Finally, the defendant had a gun in her purse during the ordeal. 4

The evidence is sufficient to s upport a conviction of agg ravated kidnapping. The fact that the child was dec eived b y her aunt

does not remove criminal liability. Clearly, what Niki thought was an afternoonshopping trip turned into a long-distance flight of approximately 24 hours’ duration. During this time, Niki
was unable to call or retu rn home. The defendant was in posses sion of a gun throughout the incident.

In finding the evidence sufficient to suppo rt the aggravated ki dnapping conviction, we have considered and reject e d the defendant’s argument that she w as unable to form the requ isite knowing mens rea for false imprisonment, an element of the crime, due to her vol untary intoxication

. See Tenn. Code Ann. § 39-11-503 (1997) ( vol untary intoxication ). There is evidence that the defendant consumed copious quantities of alcohol. However, there is also evidence that the defendant
was able to present a forged check. She had the ability to deduce that she sho uld h ave Nik i leave a message at the M orris home that they mig ht be out overnight,17

rather than calling Ms. Morris at work, which might result in resistance to the plan. The defendant was able to communicat e with a highway patrol officer and a tow truckdriver. She had the presence of mind to keep the tow truck dr iver from opening the trunk. She was able to concoct a schemeand instruct Niki in it so that they could gain the sympathy of the tow truck driver with thei r story of mother and daughter escaping an abusive home. Obviously, the j ury rejected the defendant’s claim that voluntary intox ication negatedher ability to form the culpable mental state of the crime. This was its prerogative as the tr

ier of fact.

The evidence sufficiently s upports the defendant’s convictions of second degree murder and aggr avated kidnapping. The tri al court did not err in denying the motion for judgment of acquittal.

II Next, we conside r whether t he trial co urt prope rly de nied the defendant’s motion for change of venue. The defendant clai ms she was deprived of a fair trial because of prej u dicial pretrial publicity surrounding her case. It is beyond dispute that this case received a great deal of publicity. During voir dire , it
was apparent that many of the prospective juror

s were familiar wi

th the facts ofthe
case.

Initiall y, the defendant was not ch arged wit h the murder of Ashley J ones. Much of the publicity of which the defendant complaine d in her p retria l motion dealt with the

pending charges for the kidnapping, theft and forgery and the ongoing investigation of Ashley ’s disappearan ce. S everal newspaper ar ticles appended to the motion for change of venue cast the shadow of suspicion upon the5 Not all of the articles ar e dated; however, those bea ring dates are from September, October and November 1996, all a year or more before the trial. In the most egregious of these articles, an officer of the Sheriff’s Department is quoted, “Joyce knows the circumstances of where that baby is and she just won’t tell. She knows wh at happened.” The other articles are more innocuous by comparison, stating that the defendant’s vehicle was searched, identifying the defendant as a suspect, and recitin g facts of the crimes from official r ecords. 18 defendant for Ashley’s disappearanc e. 5 Prior to trial, the defense moved the court fora change of venue based primarily upon the unfair prejudice to the defendant in her kidnapping, theft and forgery cases from the suspicion that she was involved in Ashley’s disappearance. The trial cour t denied th e motion but indicated it would reconsider

if there was difficulty selecting a jury. After the motion was heard, the defendant was charged with secon d degree murder, and she went to trial on the murder charge along with the other charges. At tr ial, the defense renewed the motion for change of venue after the jury was selected. The trial judge denied the motion, stating that although some of the jurors were familiar with the case, he was satisfied they could se t asi de their pre-trial know ledge and render an impartial verdict.

A change a venue may be granted “if it appears to the court that ,due to undue excitement agai nst the d efendant in the county where the offense was committed or any othe r cause, a fair tria l probabl y c o uld not be had.” Tenn. R. Crim. P. 21(a). In determining whether a c hange of venue should be grant ed, relevant factors include 1. Nature, e xtent, an d timing o f pretria l publicit y. 2. Nature of publicit y as fair or inflamm atory. 3. The part icular con tent of the publ icity. 4. The degre e to which the publicit y complained of has permeated the area from which the venire is drawn. 5. The degree to which the publ icity circulated outside the a rea from which the venire i s drawn.19 6. The time elapsed from the release of thepublicity until the trial. 7. The degre e of care exercised in the sel ection of the jury. 8. The ease or diffi cultly in se lecting th e jury. 9. T he veniremen’s familiarity with the publicity

and its effect, i f any, upon them as shown thr ough their answers on voir dire. 10. The defendant’s utilization of his p[er]emp tory challenges. 11. The defendant’s utilization of chal lenges for cause. 12. The participation by poli ce or by prosecution in the

release of publicit y. 13. The severity of the offense charged. 14. The absence or presence of threats, demonstrations or oth er hostility against the defendant. 15. Size of the area from which the venire is draw n. 16. Affidavits, hearsay or opinion testimony of witnesses. 17. Nature of the verdic t returne d by the tri al jury. State v. Hoover , 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979). The mere exposure of jurors to pretrial pub licity do es not constitute constitutional error; indeed, “in this age of mass media it is quite lik ely that ju rors may ha ve had some level of pre-trial exposure to the facts and issues involved in a case.” State v. Kilburn , 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989). Whether to allow a motion forchange of venue is a matter left to the sound discretion of the trial court, whose decision will not be rever sed on appeal absent a clear abuse of that discretion. See, e.g. , State v. Vann , 976 S.W.2d 93, 114 (Tenn. 1998) (citation omitted), cert. denied — U.S. —, 119 S. Ct. 1467 ( 1999).

We have considered each of the Hoover factors w ith an eye toward the facts of this case. It is tr ue that many of

the prospective juror

s, some of whom ultimately served as jurors, had been expos ed to pretrial publicity. The publicity was gen erallyunfavorable to the defendant, and unfortunatel y, a member of law6 Moreover, we see no abuse of discretion in the tri al court’s refusal to

excuse any of these three pr ospective jurors for c

ause. See State v. Burns , 591 S.W.2d 780, 782 (T enn. Crim. App. 1979). 20 enforcementchose to make dispara ging comments about the defendan t which added to the media speculationabout the defendant’s guilt. There is reference in the record to media presence i n the courtroom during the t rial, indicating ongoing interest in the case. On the other hand, the parties and the court to ok great care in se lecting the jury. Of the three prospective jurors w hose comments the defendant specifically references in her brief, only one

ultimate ly served on the jury. With respect to that juror, w e view her comments, tak en in thei r totality, as an unequivocal indication she could set aside the pretrial i nformation she had received and consider the case solely on the evidence at trial. 6 Review of the voir dire reveals m any prospective jurors with some knowledge of the case but few with strong prejudic e against the defendant. The jury returned a verdict on a lesser offense on one of the charges – the defendant w as cha rged wi th especially aggra vated k idnapping, and the verdict was for aggravated kidnapping. This indicatesthe jury was not u nduly inf lamed by p retrial pu blicity; rather, it considered the evidence before it in reac hing its verdict.The crimes and the trial took place in Shelby County, which this court judicially knows is the most populated metropolitan
area of the state. As the distric t attorney pointed out duri ng arguments on the motion to change venue, news o f one c rime in Shelby County is unfortunately quickly replaced with news

of anoth er . The defendant’s complaint about the publi city at the time of the original heari ng on the motion was that the defendant
was being prejudiced by extensi ve medi a speculation about her involvement in Ashley Jones’s disappearance, w hich was at

that time an uncharged crime. By the time of trial, the defendant faced trial for Ashley’s murder in addi tion to the other charges. The concern that the jury would unfairly conv ict the defendant of kidnapping, theft

and forgery charges in order to punish her for her suspected role21

in Ashley’s disappearance should have been lessened when the juryhad the option of convicting the defendant for a crime directly rel ated to Ashley’s disappear ance. On balance, we find no abuse of discretion in the trial court’s denial of

the motion for change of venue.

III

The defendant’s next issue concerns the admission of Vicky Morris’ testimony

about the defendant’s hard feelings toward Ms. Morris because th e father of the defendant’s daughter was awarded custody of the chi ld. The trial court limited the evidence to the basic fact s of the defendant having beh aved coldly toward Ms. Morris in Febr uary 199 6, the p hone conversation between Ms. Morris
an d the defendant in April 1996, and Ms. Morris’ account of her brie f tenure a s Tammy’s custodian and the subsequent judicial award of custody toTammy’s father in 1989. The trial court specifically ordered that any facts related to why the defendant lost cust ody of Tammy, such as evidence of the de fendant’s bad character

as a mother, was not admiss ible. The court allowed evidence, however, that Tammy and Ashley resembled each other at the age of four.

On appeal, the defendant presents this i ssue as one cognizable under Rule 404(b) of the Tennessee Rules of Ev iden ce , which pertains to cha racter evidence through proof of other crimes, w rongs or acts. How

ever, thetrial court’s order excluded proof in the natu re of cha racter evid ence. Acc ordingly, we believe the issue is more properly viewed as a Rule 403 question of whether the danger of unfair prejudice from admission of this evidence outw eighed its probative value. SeeTenn. R. Evid. 403.

In reviewing

a trial court's decis ion to admit or exclude evi dence, an appellate court may disturb the lower court's ruling only ifthere has been an abuse22

of discretion. State v. DuBose , 953 S.W.2d 649, 652 (Tenn. 1997); State v. Baker , 785 S.W.2d 132, 134 (Tenn. Crim. App. 1980).

In this case, the defendant’s recent actions and expressions of ill will toward her sister from a prior family-relatedincident were highl y relevant to cri mes committed by one family member against other members of the family. The defendant’s sister, Vicky Morris, is both themother of the child victims and a victim herself of the theft. “The motive and i ntent of the defendant in the commission of
a murder are almost always critical issues.” State v. Gentry , 881 S.W.2d 1, 7 (Tenn. Cri m . App. 1993). The murder of Ashley Jones is the centerpiece of the defendant’s criminal episode. Four -year-old A

shle y’s resemblance to Tammy at the age of four was

additional, relevant and probative evidence from which the jury could have inferred a m otive for the crim es. Although this evidence is prejudicial to the defend ant in the sense tha t it point s the fin ger of guil t at her, we fail to see that it is unfairly prejudicial. See id

. at 6 (defendant not entitled to exclusion of evidence
m erelybec ause it is particularl y damaging). The tri al court carefully li mited the proof to exclude any evi dence which might crea te unfair prejudice through proof of the defendant’s prior bad acts whic h led to the defendant losing cust ody ofher child. The evidence wa s rele vant, and its probativ e value far outweighed the danger of unfair prejudice. It was properly admitted.

IV The defendant alleges the trial c ourt improperly denied her request for special jury instr

uctions on DNA evidence and corpus delicti

.

“The Judges shall not charge juries with respect to matters of fact, but maystate the testimony and declare the law.” Tenn. Const. art . VI, § 9. A criminal accused is entitled to a complete and correct charge of the law, State v. Teel , 79323

S.W.2d 236, 249 (Tenn. 1990), including the law governin g the issues raised by the evidence. State v. Zirkle , 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995). A court commits no er ro r by refusing a special charge if the instructions given impart a correct, full and fair statement of the applicable law. Id

.

A. DNA Evidence

At trial the defendant urged the c ourt to instruct the jury

in accord with
a concurring opinion from the Minnesota Supreme Court, in which three of the court’s seven members opin ed At the very l east, jur ors shoul d know: (1) A given DNA profile may be shared by two or mor e people; (2) The random match probability statistic is not the equival ent of a statistic that tells the ju ry th e likelihood of whether the defendant committed the crime; (3) The random match probability statistic is the l ikelihood that a random person i n the population would match th e characteri sti cs that were found in the crime scene evidence and also in defendant’s DNA; (4) Where the known DNA sample from the def e ndant matches the unknown sa mple obtained from t h e crime scene, it does not necessa rily m ean the d efe ndan t is the source of the sample found at the crime scene; and (5) That jurors alone have th e final responsibility to decide the weight to be given to DNA r

andom match probability statistics. State v. Bloom , 516 N.W.2 d 159, 171 (Minn. 1994) ( en banc ) (concurring opini on of Page, J., joined by Gar debring and Tomljanovich, JJ.). The trial court declined to give the instructi on; however, the tri al court did give the pattern instruction on expert testimony.

We believe the trial cour t gave a correct, full and fair statement of the law. Moreover, the

defense ably challenged the s tate’s DNA proof through i ntense, probing cross-examination of the state’s e xpert and presenta tion of i ts own expert proof. The expert testimony elicited by the defense included evidence on the Bloom factors. Much of the special instruction concerns what are ess entially matters of asserted scientific fact. A s such, co mmentary in the form of a special i nstruction24

would be constitutionally impermiss ible. See Tenn. Const. art. VI, § 9. The tri al court’s charge was proper.

B. Corpus Delicti The defendant also claims the trial c ourt should have given a special instruction on corpus delicti because the case involv es an entirely circumstantial homicide case in which no body was recovered. The defenda nt’s proposed instruction reads Corpus delicti must be proven beyond a re asonable doubt and corpus del[i]cti in a homicide case consists of co mpetent proof ofthe death of a human bei ng which was caus ed by a criminal act or

agency of another. In homicide cases it must be pr oven beyond a reasonable doubt that the death in question was not occasioned by natural causes, accident, or by the deceased in person. Therefo re, t o find that the defendant, Joyce Lindsey,is guilty of homicide,you must find that the state has prov en b eyond a reasonable doubt that As hley Jones is in fact dead, you must also find that Joy ce Lindsey

did some act that caused the death of Ashley Jones. Finally, y

ou must also find that the State has proven t hat the death of Ashley Jones w as not occasioned by natural causes, acci dent, or some act of Ashley Jones herself

. Instead, the court charged The law presumes that the d efenda nt is innocent of the charges a gainst her. You enter upon this i nvestigation with the presumption that the defendant is not guilty of any cri me and this presumption stands as a witness for he r u ntil it is rebutted and ov erturned by competent and cr

edible p roof. It is therefore incumbent upon the s tate, before you can convic t the defendant, to establish, to your satisfaction, beyond a reasonable doubt the corpus del[i]cti or “body of the crime” that is: As to the Murder Charge : 1. That Ashley Jones has been kil led. 2. That the defendant killed her, and that the killing w

as done in such a manner, by such means, and u nde r such circumstances

as would make her guil ty under the law of one of t he grades of felonious homicides her etofore defined an d explained to you. 3. The venue; that is that Ashley Jones was killed in

Shelby25 County, Tennessee before the finding of the indictment.

The defendant’s primary complaint on appeal is that the court did not instru ct the jur

y that it must fi nd that A shley’ s death w

as not th e result of natura l
causes , accident or self-inflicted injury. See Shepherd , 902 S.W.2d at 9 01

. Although this is a necessary prerequisite to a finding of guilt in a homicide

case, see Davis v. State , 1 Ten n. Crim. App. 479, 483, 445 S.W.2d 933, 935 (1969), a
con clusion th at a defendant has, with a culpabl e mens rea , killed another is
nec essar ily

antithetical to the possibi lity that the victim’s death was from natural causes, accident or suicide. In t he present case, the jury was properly ins

tructed
on the definition of second degree murd er and the lesser grade homicide offenses. By finding that

the defendant knowingly killed the victim, logic required that the jury first eliminate the possibilities of natural death, accident or suicide. The additional instruction the defendant reques ted was surplusage.Accordingly, the charge the judge gave on corpus

de licti wa s a co rr ec t, fu llan d fai r s

ta te me nt of th e l aw . We find no error.

V

Finally, the defendant questions wheth e r the trial court properly imp os ed consecutive sentences for the second degree murder and ag gravated kidnapping convictions. When there is a challenge to the len gth, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review of the record wi

th a presumption that the d eterminatio ns ma de by t he trial court are correct. Tenn. Code Ann. §40-35-401(d) (1997). This presumption is “conditione d upo n the affirmative showing i n the record that the trial court considered the sentencing principles and all rel evantfacts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is upon theappellant.” Id . In the event the record fai ls to demonstratethe26

required consideration by the trial court, review of the sentence is purely de novo

. Id

. If appellate review r

eflects the trial court properly considered all relevant factors and its finding s of fac t are adequately supported by the record, this court must affirm the sentence, “even if we would ha ve preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

In making its sentencing determination, the tri a l court, at the conclusion of the sentencing hearing, determines the r ange of sentence and then determinesthe specific sentence an d the propriety of sentencing alternatives by considering(1) the evidence, if any, received at the trial and the senten cing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to
sen tencing alternatives, (4) the nature and characteristics of the criminal c onduc t involved, (5) evidence and informatio n offered by the parties on the enhancement and mitigating factors, ( 6) any state m ents the defendant wishes to make i n the defendant’s behalf about sentencing, and (7) the potent ial for rehabilitation or treatment. Tenn. Code Ann. §40-35-210(a), (b) (1997); Tenn. Code Ann. §40-35- 103(5) (1997); State v. Holland , 860 S.W.2d 53, 60 (T enn. Crim. App. 1993).

Consecu tive sentencing may be imposed i n the discretion of the trial court upon a determination that one or more of the following cr iteria exist: (1) The defendant is a professional criminal who has knowingly devoted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose record of criminal activ ity is extensive; (3) The defend ant is a dangerous mentally abnormal person so declared b y a competent psychiatrist who concludes as a result of an in v estigation prior to se ntencing that the defendant's criminal conduct has b een char acterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences; (4) The defendant is a da nger ous offender whose behavior27 indicateslittle or n o r egard for human life, and no hesitati on about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or mo re statutory offenses involving sex

ual abuse of a minor

with consideration of the aggravating ci rcumstances arising from the relationship between the defendant and victim or victi ms, the time span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims; (6) The defendant is sentenced for an offense committed while on probation; or (7) The defendant is sentenced for criminal contempt. Tenn. Code Ann. § 40-35-115(b) (1997). In State v. Wilkerson , 905 S.W.2d 933, 937-38 (Tenn. 1 995), th e suprem e court im posed two additional requirements for
consecu tive sentencing of “dangerous offenders” -- the court must find con secutive sentences are reasonably related to theseverity of the offenses committed and are necessaryto protect the public from further criminal conduct. Se e State v. David Keith Lane , --- S.W.2d ---, No. 03S01-9802-CC-00 013, slip op. at 8-9 (Tenn. Knoxville, Sept. 27, 1 999).

The tria l co urt found that the defendant was a dang erous offender based upon the lack of reg ard for h uman life and high risk from the inv olvement of alcohol, particularly duri ng the kidnapping episode w hen she was drinking and driving. The court did not explicitly rely upon Wilkerson , basing its decision i nstead upon State v. Woods , 814 S.W.2d 378 (Tenn. Crim. App. 1991), modified by State
v. Wilkerson , 905 S.W.2d 933 (Tenn. 1995). Wilkerson represents a modification of the s t rict factual findings necessary for consecutive sentencing under Woods

. See, e. g. , State v. Moore , 942 S.W.2d 570, 573 (Tenn. Crim. App. 1996). T h e findings necessary for consecutive sentencing under Woods are essentially included within those necessary under Wilkerson

. Compare Woods , 814 S.W.2d at 380 (co urt must find, inter alia , that “the circumstances s urrounding the28

commission of the offense are aggravated” and that “confinement for an extended period of time is necessary to protect society from the defendan t’s unwillingness to ‘lead a productive life and [his ] resort tocriminal activity in furtherance of [his] antisoc i etal lifestyle’”) with Wilkerson , 905 S.W.2d at 937-38 (court must find that
conse cutive sentences are reasonably related to the severity of the offen se s committed and are nece ssary to protect the public from further criminal conduct). Thus, the trial court’s Woods f in dings are a ready sur rogate for the required Wilkerson findings.

With respect to the severit y of the offenses, the court commented that the use of alcohol was inv olved in both the mur

d er and the kidnapping, and the defendant had exhibited a lack of regard for human life by dri nking and driving during the commission of the kidnapping.The court also relied upon Niki’s young age and the impact of the kidnapping on her. With respect to the need to protect the public from further criminalconduct of the defendant, the court commented that it was impossible to know what was

ins ide the defendant’s mind in order t o know with certainty whether or not “this is a one-ti me thing;” however,the defendant had murdered a child, go ne to greatlengths in disposing of the body, concealed the crimeand kidnapped Niki. The court consider ed these facts indicative of the need to protect the public from further criminal activity. Upon de novo review, we ag ree. The facts found by the court support the imposition of consecutive sentence s f or second degree m urder and aggravate d kidnapping.29 Finding no error requiring reversal, we affirm the judgment of the trial court.

________________________________ JAMES CURWOOD WITT, JR., JUDGE
CONCUR:

_____________________________ DAVID H. WELLES, JUDGE

_____________________________ JERRY L. SMITH, JUD GE