IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 24, 2010

STATE OF TENNESSEE v. DAVID WILLIAM COSGRIF, III

Direct Appeal from the Criminal Court for Roane County

No. 12963B E. Eugene Eblen, Judge

No. E2009-02547-CCA-R3-CD - FILED OCTOBER 21, 2010

The defendant, David William Cosgrif, III, was convicted by a Roane County jury of second

degree murder, a Class A felony, and theft over $1000, a Class D felony, and was sentenced

by the trial court as a Range I offender to an effective term of twenty years in the Department

of Correction. He raises essentially three issues on appeal: (1) whether the evidence was

sufficient to sustain his second degree murder conviction; (2) whether the trial court

erroneously admitted scientific testimony that did not meet sufficient indicia of reliability;

and (3) whether the trial court imposed an excessive sentence for the murder conviction.

Following our review, we affirm the judgments of the trial court but modify the defendant’s

sentence to fifteen years.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

as Modified

ALAN E. GLENN,J., delivered the opinion of the Court, in which JOSEPH M. TIPTON, P.J., and

THOMAS T. WOODALL, J., joined.

Bruce E. Poston, Knoxville, Tennessee, for the appellant, David William Cosgrif, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant

Attorney General; Russell Johnson, District Attorney General; and Frank Harvey, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

This case arises out of the murder of a seventy-six-year-old woman, Kathleen Taylor,

whose decomposed remains were found in rural Roane County on December 27, 2003,
approximately two years after she mysteriously disappeared from her Harriman home. The

defendant, who lived with the victim, aroused the suspicions of police by the fact that he

remained in her home after her disappearance, forged checks drawn on her bank account,

used her debit card and vehicle, and offered varying stories to account for her whereabouts

and his possession of her property. Eventually charged with the first degree premeditated

murder of the victim and two counts of theft over $1000, he was tried before a Roane County

jury from July 7-9, 2009.

State’s Proof

Alex Zamisz, the victim’s grandson, testified that his brother, Chris Zamisz, and the

defendant, who was Chris’s friend and possibly his lover, moved in late 2001 with the victim

from Texas to Harriman, Tennessee, where the victim bought a home that Chris Zamisz and

the defendant were supposed to be remodeling. Zamisz stated that his brother, Chris, came

back to Texas a few days after the victim’s move to Tennessee and, due to a severe ankle

injury that left him bedridden for a time, remained there until the summer of 2002 when the

defendant picked him up and took him back to Tennessee.

Zamisz testified that the last time he spoke to the victim was shortly after her move

to Tennessee. He said he heard from his brother in February 2002 that the victim had gone

to Florida for knee surgery and from the defendant in the summer of 2002 that the victim was

still enjoying her visit with her friends in Florida. He stated that the defendant was evasive

when he asked how to get in touch with the victim, telling him that the victim was still

recuperating and did not want to talk to anyone.

Zamisz testified that the victim was heavyset but had had no difficulty climbing the

stairs in his home when she visited him immediately before her move to Tennessee. He said

he had never known the victim to use a computer or email. When, however, he expressed

renewed concern for her welfare after six months had elapsed since he had last heard from

her, his brother forwarded him an email that purportedly had been sent by the victim to his

brother at the Harriman home. In the email, the victim stated that she was fine but did not

want to be bothered by her family. The victim also threatened to cut the family out of her

will if they persisted in bothering her. According to Zamisz, the victim “would never talk

like that.” He described the victim as a woman who was tight with her money and said that

she was particular about whom she allowed to drive her pickup truck. He also said that he

had never heard of Ed and Marge Carroll, the friends with whom the victim was reportedly

staying in Florida.

Michael Goins, who was a lieutenant with the Harriman Police Department in July

2002, testified that on July 2, 2002, he was sent to perform a “welfare check” on the victim

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at her Harriman home. He said that the defendant and Chris Zamisz, who answered the door

together, told him that the victim had gone to Florida for knee surgery. They were unable,

however, to provide him with her contact phone number, address, city, the names of the

individuals with whom she was staying, or the hospital at which she had had her surgery. He

said he asked the men about the activity that was taking place on the victim’s debit card, and

they explained that they had permission to use the account because they were remodeling the

residence. Goins testified that sometime later he responded to a hang-up 911 call from the

residence, asked to search the home, and found an individual hiding in the closet. He saw

no signs of the victim, however, and no complaint ever arose as the result of that call.

Mark McKinney testified that he was hunting in a wildlife management area in Roane

County early on the morning of December 27, 2003, when he noticed a human skull on the

ground approximately thirty feet from the woods road he had used to access the hunting area.

Lieutenant Robert Anderson of the Roane County Sheriff’s Department testified that

he responded to McKinney’s December 27, 2003, call about the skull, which was located in

an area that was approximately two and a half to three miles from Riggs Chapel Road.

Deputy Robert Childs, Jr. of the Roane County Sheriff’s Department testified that he

collected into evidence the bones found on December 27, 2003, and turned them over to Dr.

Jantz with the University of Tennessee Anthropology Department. He said that with the help

of a cadaver dog, he and other officers found additional bones in the area on January 21 and

January 23, 2004. On cross-examination, he testified that during his search on December 27,

2003, he discovered a shallow grave with a femur bone protruding up through the dirt, which

was located between the gravel logging road and the skull.

Officer Kelly Jackson of the Kingston Police Department, who was formerly

employed with the Roane County Sheriff’s Department, assisted in the collection of the

bones discovered by the cadaver dog on January 21 and January 23, 2004, and later delivered

them to the University of Tennessee’s Anthropology Department.

Dr. Lee Meadows Jantz of the University of Tennessee’s Anthropology Department,

who was accepted by the court as an expert in the field of forensic anthropology, testified that

she determined that the recovered bones came from a human female of Caucasian or

European origin who was at least sixty years of age. Although she had no dental records to

work from, she was able to positively identify the remains as those of the victim by

comparing the victim’s frontal sinus cavity on an x-ray of her skull, obtained from her

medical records, to the frontal sinus cavity on the x-ray of the skull found in the woods. Dr.

Jantz explained that each individual’s frontal sinus cavity, similar to his or her fingerprint,

is unique and that she “made a positive match on at least eight points,” which was a

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significant number, in her comparison of the x-rays. She said that a colleague, Dr. Angie

Christianson, had conducted a study to determine the likelihood of misidentification through

comparison of frontal sinuses and “was able to show that it’s simply not going to happen.”

She testified that Dr. Christianson had written a peer-reviewed article on the topic, which in

2004 was published in the American Journal of Physical Anthropology, a peer-reviewed

magazine subject to scientific scrutiny and accepted in the scientific community of forensic

anthropology. She said that Dr. Christianson had concluded the article with the following

statement: “Each individual’s frontal sinus outline is distinctly and quantifiably different at

a highly significant level.”

Dr. Jantz also noted the presence of healed nasal fractures on the skull that were

consistent with the radiologist’s report, contained in the victim’s medical records, of nasal

fractures that the victim had sustained during a home invasion in Chicago. Based on the

evidence of rodent activity on the bones but the lack of evidence of “exfoliation,” or flaking,

Dr. Jantz estimated that the remains had been at the site “between one and two years

minimum but no longer than five.” She said she found evidence of unhealed blunt force

trauma, which occurred at the time of death, to the left side of the skull and face. She further

testified that she found three neck vertebra within the pelvic inlet inside the shallow grave,

which indicated that the body “was allowed to decompose for a certain period of time” before

burial at the site.

On cross-examination, Dr.Jantz acknowledged that DNA analysis was not performed

on the bones. She said that her assistant and several of her graduate students confirmed her

eight-point match of the sinus cavity x-rays and that no one senior to her at the university

reviewed her work because she was the most senior member of the department. She testified

that she used Dr. Christianson’s paper to “show statistical probabilities” of her identification

of the skull, and she acknowledged that Dr. Christianson was the only person who had

published anything on that particular topic. She conceded that it was more likely that the

blow that caused the blunt force trauma to the victim’s head was delivered from someone

standing either in front or to the side of the victim rather than behind her.

On redirect examination, Dr. Jantz testified that there were numerous published

papers, some of which dated from the 1940’s or 1950’s, on the identification of individuals

by their sinus cavities and that the purpose of Dr. Christianson’s work “was to actually

provide the statistical evidence that frontal sinuses can be used as a unique identifier.”

James Kirkland testified that he became acquainted with the defendant, who

introduced himself as “Kawika Taylor,”when the defendant stopped by his home as he was

doing yard work. The defendant told him that his father lived in Hawaii and was a physician

and a retired admiral with the United States Navy, and in later conversations he implied that

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his family was wealthy. Kirkland never met the victim, but he recalled having heard that an

elderly woman lived with the defendant at one time. He said that about four months after he

met the defendant, the defendant introduced him to a young man that he identified as his

nephew. Kirkland testified that he took the defendant on sightseeing trips to several areas

of interest in the county, including some old coke ovens located on Rockwood Mountain past

Jolly Road, where the defendant took photographs. On cross-examination, he agreed that the

defendant, whom he described as a “non-violent person,” was not as vigorous a man as he

was.

John Bales testified that the victim, an older, “solid, pretty good size woman” of

average height who appeared to weigh approximately 300 pounds, hired him to perform

various repairs on her home. He said that the defendant, who called himself “Kawika

Taylor,” identified himself as the victim’s nephew and that he initially consulted him about

how he should perform the work. The victim, however, soon made it clear to him that it was

her house and that she was the one who would direct his work. Bales said that, although

heavy, the victim got around well and that he once saw her high on an extension ladder

painting the gable underneath her roof.

Bales testified that after a few months he no longer saw the victim. When he later

asked the defendant about her, the defendant told him she had gone to Florida to have knee

replacement surgery. Bales said he continued to work at the home for only a few days after

his last sighting of the victim; the defendant stopped calling him for repair work and it

appeared to him that the defendant no longer wanted him at the house. Soon thereafter, he

was driving by the victim’s house when he noticed that some of the windows were covered

with aluminum foil, which struck him as strange because the victim had expressed a desire

for more light in the home. He also noticed that a young man and woman were staying at the

house for a time.

Bales further testified that he was once riding a dirt bike on Riggs Chapel Road when

he saw the victim’s pickup truck being driven rapidly down the road and then saw the

defendant pulled in beside an old abandoned house. He said he later asked the defendant

what he had been doing, and the defendant replied that he was doing the taxes for a woman

who lived out that way. Bales stated that he saw the victim’s truck on that road on one or

two other occasions as well.

Kimberly Dagnan testified that the defendant, who introduced himself as “Kawika

Taylor,” told her that he had inherited his home from his deceased grandmother. She said

that she and her husband later moved into the home at the defendant’s request to help him

fix it up. The arrangement only lasted a couple of months, however, because the defendant

had a volatile personality, appearing calm one minute and becoming enraged the next.

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According to Dagnan, the defendant kept a locked room in the house and “would flip spastic

about it” if anyone approached it. She never saw the victim and never heard the defendant

mention anything about anyone having knee surgery.

Cynthia Gouge, who in 2002 lived next door to the victim’s Harriman home, testified

that the defendant introduced himself as “Kawika Taylor” and told her that he was the

victim’s nephew. In addition, he said that his father was a heart surgeon, that he had a large

trust fund and was very wealthy, that he had been born in Hawaii and had grown up in Oak

Ridge, that his mother was wealthy and traveled extensively, and that he was related to Lady

Bird Johnson. Gouge said she never met the victim but saw her outside the home

approximately twice. The defendant later told her that the victim had bad knees and had

gone to Florida for knee surgery. Gouge testified that at some point she met the victim’s

grandson, Chris, who was not as friendly as the defendant. She said that Chris and the

defendant left sometime in July or August 2002, telling her that they were going to Cape Cod

to get some money from their trust fund and that they would return. She stated that the men

asked her to water their plants for a couple of days while they were gone, but they never

came back. On cross-examination, Gouge acknowledged that the defendant was always

pleasant and friendly.

William Gouge, Cynthia Gouge’s husband, corroborated his wife’s account of the

tales the defendant told about his background and his relationship to the victim and testified

that the defendant later accounted for the victim’s absence by saying that she had gone to

Florida to recover from a knee injury.

James Campbell testified that the defendant, who introduced himself as “Kawika

Taylor,” told him that he was an attorney from Corpus Christi, Texas, and had just purchased

a home in Harriman. At a later point, however, the defendant changed his story, telling

Campbell that he had inherited the home and that it was tied up in probate.

Tracy Liverman, who in 2001 and 2002 was an employee of the Harriman bank where

the victim had deposited her money, testified that the defendant periodically came into the

bank with the victim, but the victim never introduced him and never put him on her accounts.

She said the last time anyone at the bank saw the victim was on February 25, 2002, when the

victim came in to place a stop payment order on a check. The Department of Human

Services later contacted the bank because the victim’s daughters had filed a missing person’s

report on the victim, and at their request the bank cancelled the victim’s debit card in July

2002. Afterwards, a man who was obviously attempting to disguise his voice as a woman’s,

and whom she recognized as the defendant, called her at the bank and, claiming to be the

victim, told her that “she” had been traveling with a friend and was fine. A few days later,

the defendant came into the bank to inquire in person about the cancelled card.

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Agent Jason Legg of the Tennessee Bureau of Investigation testified that he was

unable to uncover any record of the victim’s having received any medical treatment, either

in Florida or Tennessee, after January 2002 when she received a flu shot in Harriman.

Detective Thomas Bowler of the Pittsville, Massachusetts Police Department, who

arrested the defendant in Pittsville, testified that when he explained to the defendant that he

had been arrested on a fugitive from justice warrant that was based on a murder charge from

Tennessee, the defendant responded that he did not understand why he was being charged

with the victim’s murder and that he had taken care of her and worked on her house.

Detective Bowler stated that no one, at that point, had mentioned the victim’s name to the

defendant. On cross-examination, he testified that Chris Zamisz and a man named Richard

Shipley were living with the defendant at the time of his arrest.

James Taylor, who had been housed in the same cell block as the defendant in the

Anderson County Jail, testified that the defendant, who knew that Taylor’s mother was an

attorney, told him that the State’s case against him was entirely circumstantial and inquired

if Taylor’s mother would represent him. The defendant then related that he and Chris Zamisz

had come up with the idea to kill the victim for her money after the victim reneged on her

promise to provide funds for the defendant to open a stained glass window business. The

defendant said he had carried out the plan while Chris Zamisz was in Texas, taking the victim

to the woods or the mountains under the pretense of looking at some houses to gain

remodeling ideas for her home, hitting her in the head, and then hiding her body. According

to Taylor, the defendant also related that he had moved the victim’s body at a later point and

that it was easier the second time “because she was so decomposed.” Taylor testified that

he found the defendant’s revelations about killing a seventy-six-year-old woman and then

moving her decomposed body disturbing, which was why he had contacted the police. He

denied that he had been promised anything in exchange for his testimony and said that he

expected to serve the remainder of his sentence for violating probation by driving on a

suspended license.

On cross-examination, Taylor acknowledged having said in his statement to police

that the defendant told him he had hit the victim in the head while walking behind her in the

woods. He said the defendant never told him what he had used to hit the victim and that he

never thought to ask him. He testified that the underlying offense for which his probation

had been violated was possession of drug paraphernalia.

Chief Randy Heidle of the Harriman Police Department testified that within a day or

two of the July 2, 2002, “welfare check” on the victim, he followed up by interviewing the

defendant and Chris Zamisz at the victim’s Harriman home, where the men gave the same

account of the victim’s whereabouts that they had given to Officer Goins. He testified that

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in the written statement the defendant provided, he said that the victim had fallen and injured

herself on the front walk on January 11, 2002, and on April 10, 2002 had left with her new

friends, Ed and Marge Carroll, to go to Florida for knee surgery. The defendant also stated

that the victim had been communicating with him via email at least once a week and that she

had expressed fear that her daughters would take her assets and move her into a nursing

home.

Chief Heidle testified that he obtained a search warrant for the victim’s home after the

defendant and Chris Zamisz left for Massachusetts in August. During the search, he

discovered some areas in the backyard “where it looked like there had been some graves.”

He did not, however, find any of the victim’s remains at the home. Chief Heidle testified that

the wildlife management area where the remains were eventually found was in the same

general area as Riggs Chapel Road and Jolly Road. He said he was unable to locate any

dental records on the victim and learned from her family that she usually had dental work

performed by students at dental schools. He stated that he was unable to find any individuals

by the names of Ed and Marge Carroll. Finally, he testified that he did not recall any

information having been released in the news about the grave site or the victim’s body having

been moved, which led him to believe that James Taylor had learned the details of the crime

from someone with first-hand knowledge of the events.

On cross-examination, Chief Heidle acknowledged that a letter the defendant wrote

to Taylor’s mother contained none of the revelations that Taylor claimed the defendant had

made to him but was instead consistent with the defendant’s statement to Chief Heidle. He

further acknowledged that the victim’s bank statements showed only small cash withdrawals

and purchases at stores like Walmart and Home Depot and that the C.I.D. unit of the

Pittsville, Massachusetts Police Department, which had examined the victim’s pickup, found

no evidence that decomposed human remains had been transported in the vehicle.

Defendant’s Proof

Bryon Goodman testified that he was a staff member at Miracle Lake Christian

Training Center, a residential treatment center where the defendant had been admitted in

April 2008 due, in part, to the fact that his health had been deteriorating while he was housed

in the jail. Goodman said that the defendant had done well at Miracle Lake and had never

had a conflict with anyone. On cross-examination, he acknowledged that he knew nothing

of the defendant’s state of health in 2002.

The sixty-six-year-old defendant, in often tediously lengthy testimony, described how

he had befriended Chris Zamisz in California and let him move in with him. He said that

Chris lived with him for approximately twelve years and eventually introduced him by

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telephone to the victim. He described having bonded with the victim through their common

experiences and said that when she expressed an interest in locating “a charming abode” to

purchase in North Carolina or Eastern Tennessee, he offered to help her. He stated that he,

Chris, and the victim drove around the area looking at numerous properties until they found

the “magnificent” but run-down house in Harriman, which the victim purchased in October

2001 with the idea of restoring. According to the defendant, the victim had plans to set Chris

up in business while she did “stained glass and . . . things in the community.”

The defendant testified that he, the victim, and Chris Zamisz moved into the house

together but that Chris returned to Dallas in November 2001 due to complications from

earlier foot surgery. He stated that he and the victim were close friends but did not have a

romantic relationship and that it was the victim’s suggestion that he use the last name Taylor

and identify himself as her nephew in order to avoid the appearance of impropriety in their

living arrangements. The defendant explained that he used the first name “Kawika” because

it was Hawaiian for “David.”

The defendant testified that the victim met Ed and Marge Carroll, a well-dressed

couple in their 70’s, at a store in Oak Ridge and developed a fast friendship with them, which

was why she agreed to go with them to Baltimore, Maryland, to see their physician after she

fell and injured her knee in January 2002. He said the victim left with the Carrolls sometime

around March 9, returned to Harriman on March 30, and then left with them again for Florida

to have double knee replacement surgery. He stated that the victim made plans to recuperate

from the surgery in the Bahamas while the defendant continued the restoration of her

Harriman home. The defendant testified that he kept a weekly summary of the repairs

performed on the home in the victim’s absence and paid the workers, with the victim’s

permission, out of the victim’s accounts. On May 10, 2002, he went to Texas to pick up

Chris Zamisz and the two of them returned to Harriman together on May 12.

The defendant testified that he had shown James Taylor his copies of discovery, which

included Dr. Jantz’s report, while they were together at the jail. He denied that he told Taylor

any of the things that Taylor related in his trial testimony. He testified that he never used the

victim’s account to make purchases on his own behalf and that he had only $500 or $600 at

the time of his arrest. He stated that Chris Zamisz sold the victim’s truck in Massachusetts

and gave him $300 or $400 of the proceeds. The defendant denied having anything to do

with the victim’s murder and expressed his hope that she was still alive.

On cross-examination, the defendant testified that the Carrolls told him that they

would be in touch and that he did not think to get their contact information from them. He

said he later found their cell phone number and in July 2002 provided it to the Harriman

Police Department. He stated that he did not recall having received any emails from the

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victim, although he acknowledged having said otherwise in his statement to the police. He

further acknowledged that he forged the victim’s name to her checks and used her ATM card

to withdraw cash from her accounts on multiple occasions. He insisted, however, that she

had given him her permission to do so. He conceded that he also forged her signature to the

title to her truck. However, he justified his actions by testifying that the victim had given the

truck to Chris Zamisz in October 2001. Finally, he testified that he and Chris Zamisz left

Harriman for Massachusetts because their lives had been threatened.

State’s Rebuttal Proof

Chief Heidle testified that the defendant never provided him with any phone number

for Ed and Marge Carroll.

Following deliberations, the jury convicted the defendant of the lesser-included

offense of second degree murder in count one of the indictment; the lesser-included offense

of facilitation of theft over $1000 in count two, which charged the defendant and Christopher

Zamisz with the theft of the victim’s truck; and of theft over $1000 in count four of the

indictment, which charged the defendant with the theft of funds from the victim’s bank

accounts. The theft conviction in count two, however, was later dismissed due to the lack

1

of proof as to the vehicle’s value. At the conclusion of the sentencing hearing, the trial court

applied the enhancement factor that the victim was particularly vulnerable due to age and

sentenced the defendant as a Range I, standard offender to concurrent sentences of twenty

years for the second degree murder conviction and three years for the theft conviction.

ANALYSIS

I. Sufficiency of the Evidence

As his first issue, the defendant challenges the sufficiency of the evidence in support

of his second degree murder conviction. He argues that the State failed to prove he had the

requisite mens rea for second degree murder and that the evidence, aside from the testimony

of James Taylor, was entirely circumstantial and insufficient to exclude every reasonable

hypothesis other than his guilt. The State argues that the evidence was sufficient for the jury

to find the defendant guilty of a knowing killing of the victim, and we agree.

The third count of the indictment charged Christopher Zamisz with accessory after the fact based

1

on his having helped the defendant avoid arrest, trial, conviction, or punishment for the victim’s homicide. 

From the statements of counsel, we ascertain that Zamisz pled guilty for his role in the offenses. 

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In considering this issue, we apply the rule that where sufficiency of the convicting

evidence is challenged, the relevant question of the reviewing court is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in

criminal actions whether by the trial court or jury shall be set aside if the evidence is

insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);

State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,

604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the

weight and value to be given the evidence, and all factual issues are resolved by the trier of

fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict

by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State

and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212

Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of

innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that

on appeal a convicted defendant has the burden of demonstrating that the evidence is

insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Second degree murder is defined as “[a] knowing killing of another.” Tenn. Code

Ann. § 39-13-210(a)(1) (2006). “A person acts knowingly with respect to a result of the

person’s conduct when the person is aware that the conduct is reasonably certain to cause the

result.” Id. § 39-11-302(b). Whether the defendant “knowingly” killed the victim is a

question of fact for the jury. See State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App.

2000). The jury may infer intent from the character of the offense and from all the facts and

circumstances surrounding the offense. See id. at 105 (citing State v. Holland, 860 S.W.2d

53, 59 (Tenn. Crim. App. 1993)).

Viewed in the light most favorable to the State, the evidence was sufficient to show

that the defendant committed a knowing killing of the victim. The State presented evidence

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to show that the defendant continued to live in the victim’s home after her disappearance,

treated her truck and bank accounts as his own, repeatedly lied about her whereabouts, and

concocted various tales to account for his presence in the home. The State presented further

evidence to show that the elderly victim was killed by blunt force trauma to her head and that

her body was moved at least once after it had begun to decompose. This latter evidence was

consistent with the account of the crime that the defendant related to James Taylor, who

testified that the defendant told him he lured the victim into the woods, hit her in the head,

hid her dead body in one location for a period of time, and then moved it again after it had

decomposed.

The defendant contends that the jury’s having convicted him of second degree murder

shows that it “totally discredited” the testimony of Taylor because the account he related of

the crime was “the prototype of a first degree premeditated murder.” The defendant further

contends that without the testimony of Taylor, the evidence against him is entirely

circumstantial and insufficient to eliminate every other reasonable theory except his guilt.

We respectfully disagree. The jury, in its determination of credibility, could have chosen to

believe all, none, or part of Taylor’s testimony. Thus, the jury could have believed that the

defendant confessed the killing to Taylor but have been doubtful about the particular details

provided in Taylor’s account. As such, the jury could have reasonably concluded that the

evidence, which included all of the defendant’ssuspicious activitiessurrounding the victim’s

disappearance, was sufficient to prove that the defendant knowingly killed the victim, but

insufficient to prove beyond a reasonable doubt that the murder was premeditated. We

conclude, therefore, that the evidence is sufficient to sustain the defendant’s conviction for

second degree murder.

II. Identification of Remains

The defendant next contends that the trial court erred by allowing Dr. Jantz’s

testimony with respect to the method by which she identified the remains. Specifically, he

argues that the trial court should have disallowed her testimony on the basis that the sinus

cavity identification methodology she employed does not meetsufficient indicia of reliability

for admission under Tennessee law.

The admission of expert testimony is governed by Tennessee Rules of Evidence 702

and 703. Rule 702 provides that “[i]f scientific, technical, or other specialized knowledge

will substantially assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill, experience, training, or education

may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. Rule 703 provides

that expert testimony shall be disallowed “if the underlying facts or data indicate lack of

trustworthiness.” Tenn. R. Evid. 703.

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In McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 265 (Tenn. 1997), our

supreme court recited several nonexclusive factors that a court may consider in determining

the reliability of scientific testimony, including:

“(1) whether scientific evidence has been tested and the methodology with

which it has been tested; (2) whether the evidence has been subjected to peer

review or publication; (3) whether a potential rate of error is known; (4)

whether . . . the evidence is generally accepted in the scientific community;

and (5) whether the expert’s research in the field has been conducted

independent of litigation.”

Brown v. Crown Equipment Corp., 181 S.W.3d 268, 274 (Tenn. 2005) (quoting McDaniel,

955 S.W.2d at 265). The Brown court identified two other factors that a trial court may

consider in assessing the reliability of an expert’s methodology: (1) the expert’s

qualifications for testifying on the subject at issue, and (2) the connection between the

expert’s knowledge and the basis for the expert’s opinion. Id. (citations omitted).

“[T]he allowance of expert testimony, the qualifications of expert witnesses, and the

relevancy and competency of expert testimony are matters which rest within the sound

discretion of the trial court.” State v. Rhoden, 739 S.W.2d 6, 13 (Tenn. Crim. App. 1987)

(citing Murray v. State, 214 Tenn. 51, 377 S.W.2d 918, 920 (1964); Bryant v. State, 539

S.W.2d 816, 819 (Tenn. Crim. App. 1976); State v. Holcomb, 643 S.W.2d 336, 341 (Tenn.

Crim. App. 1982)). As such, we will not disturb the trial court’s ruling absent a clear

showing that it abused its discretion in admitting the testimony. Id.; State v. Stevens, 78

S.W.3d 817, 832 (Tenn. 2002).

Initially, we note that neither the transcript of the pretrial hearing at which the trial

court ruled in favor of admitting the evidence nor Dr. Jantz’s written report is included in the

record before this court. It is the defendant’s duty to prepare a fair, accurate, and complete

record on appeal, see Tenn. R. App. P. 24(b), and when necessary parts of the record are not

included, we must presume that the trial court’s ruling was correct. See State v. Oody, 823

S.W.2d 554, 559 (Tenn. Crim. App. 1991). We, therefore, agree with the State that the

defendant has waived the issue by his failure to provide an adequate record for our review.

Even if not waived, the defendant would not be entitled to relief on the basis of this

issue. Dr. Jantz testified that she held bachelor’s, master’s, and doctorate degrees in

biological anthropology, was the head of the Department of Forensic Anthropology at the

University of Tennessee, had been an instructor in forensic anthropology in the National

Forensic Academy since 2001, had been doing case work since the mid to late 1980’s, and

had worked extensively at the “Body Farm,” a premier research facility at the University of

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Tennessee that was nationally known. Thus, she was clearly qualified as an expert in

forensic anthropology. In addition, apart from her testimony about the identification of the

victim by her frontal sinuses, a topic on which she said extensive research had been

conducted and numerous scientific papers written, she identified the bones as those of a

Caucasian woman at least sixty years of age who had nasal fractures that were consistent

with fractures the victim had sustained. That evidence, combined with evidence that the

remains were located in the same county from which the victim disappeared and were of an

age consistent with the victim’s last sighting, was sufficient for a jury to reasonably conclude

that the remains were those of the victim.

III. Excessive Sentence

Lastly, the defendant contends that the trial court imposed an excessive sentence for

his second degree murder conviction. In support, he cites his lack of a criminal history,

model behavior at the unsecured Christian residential center, advanced age, and deteriorating

health.

When an accused challenges the length and manner of service of a sentence, it is the

duty of this court to conduct a de novo review on the record with a presumption that “the

determinations made by the court from which the appeal is taken are correct.” Tenn. Code

Ann. § 40-35-401(d) (2006). This presumption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant facts and

circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does

not apply to the legal conclusions reached by the trial court in sentencing the accused or to

the determinations made by the trial court which are predicated upon uncontroverted facts.

State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d

922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim.

App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

In conducting a de novo review of a sentence, this court must consider (a) any

evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the

principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e)

the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g)

any statistical information provided by the administrative office of the courts as to Tennessee

sentencing practices for similar offenses, (h) any statements made by the accused in his own

behalf, and (i) the accused’s potential or lack of potential for rehabilitation or treatment.

Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.

Crim. App. 2001). The party challenging the sentence imposed by the trial court has the

burden of establishing that the sentence is erroneous. Tenn .Code Ann. § 40-35-401 (2006),

Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169.

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In imposing a specific sentence within a range, a trial court “shall consider, but is not

bound by,” certain advisory sentencing guidelines, including that the “minimum sentence

within the range of punishment is the sentence that should be imposed” and that “[t]he

sentence length within the range should be adjusted, as appropriate, by the presence or

absence of mitigating and enhancement factors[.]” Tenn. Code Ann. § 40-35-210(c)(1), (2).

The weighing of the various mitigating and enhancement factors is “left to the trial court’s

sound discretion.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008).

The trial court enhanced the defendant’s second degree murder sentence from fifteen

years to twenty years based on its finding that the victim was particularly vulnerable due to

age and possible physical infirmity. The trial court’s ruling states in pertinent part: “[T]he

Court feels that the age of the victim does have a play into it. And maybe her physical health,

maybe not, but her age at least and the Court does not feel that this would be a minimum

sentence range.”

Whether a victim is “particularly vulnerable” for the purposes of the enhancement

factor is “a factual issue to be resolved by the trier of fact on a case by case basis.” State v.

Poole, 945 S.W.2d 93, 96 (Tenn. 1997). Application of the factor is appropriate in cases

where the victim’s vulnerability “had some bearing on, or some logical connection to, ‘an

inability to resist the crime, summon help, or testify at a later date.’” State v. Lewis, 44

S.W.3d 501, 505 (Tenn. 2001) (quoting Poole, 945 S.W.2d at 96). “The State is required to

proffer evidence in addition to the victim’s age to establish particular vulnerability; however,

that evidence ‘need not be extensive.’” Id. (quoting Poole, 945 S.W.2d at 97).

At the time the murder presumably took place, in early 2002, the victim, who by all

accounts qualified as obese, was seventy-six years old while the defendant was

approximately fifty-nine. In this matter, as we have set out, the trial court found that the

victim was particularly vulnerable due to her “age at least.” However, in Poole, our supreme

court determined that the trial court had erred in concluding that a seventy-year-old who lived

alone was particularly vulnerable simply because of her age and living status:

Without question, this 70-year-old victim living alone was vulnerable to the

type of offense committed by the defendant. We do not hold nor do we believe

otherwise. Yet given the inherent ambiguity in attempting to determine

vulnerability solely from one’s age, we are unwilling to engage in potentially

unfounded presumptions. A person’s age alone may have little or no bearing

on size, strength or vitality. Thus, unless the State produces evidence of

physical or mental limitations at the time of the offense, along with proof of

the victim’s age, it cannot be presumed that the victim was particularly

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vulnerable based solely on her age.

Poole, 945 S.W.2d at 97-98.

We note that John Bales, a witness for the State, testified that the victim, in spite of

her age and size, was able to get around well, and he related that he once had seen her on an

extension ladder, painting a gable under the roof. Thus, based upon the holding in Poole, we

are compelled to conclude that, although the victim was elderly and very obese, these facts

alone did not establish that she was “particularly vulnerable,” for sentence enhancement

purposes.

Accordingly, we conclude that the trial court erred in enhancing the defendant’s

sentence to twenty years and modify the sentence to fifteen years.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the trial

court but modify the defendant’s sentence to fifteen years.

_________________________________

ALAN E. GLENN, JUDGE

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