State of Tennessee v. Randall T. Beaty

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 19, 2016 Session
Remanded by the Supreme Court, October 19, 2016

STATE OF TENNESSEE v. RANDALL T. BEATY

Appeal from the Criminal Court for Sumner County
No. 156-2012 Dee David Gay, Judge

No. M2014-00130-CCA-R3-CD – Filed November 8, 2016
_____________________________

Defendant, Randall T. Beaty, was indicted for first degree felony murder and
aggravated child abuse. After a jury trial, he was convicted of reckless homicide and
aggravated assault, which were charged to the jury as lesser[-]included offenses. He
received consecutive sentences of four years for Class D felony reckless homicide and six
years for Class C felony aggravated assault, for an effective ten-year sentence to be
served in the Department of Correction. On appeal, Defendant argued: (1) that the
evidence was insufficient to support his convictions; (2) that the trial court erred by
allowing Detective Bachman to testify in violation of the rule of sequestration; (3) that
the trial court erred by excluding a proffer by Amber Peveler; (4) that the trial court erred
in failing to merge his convictions on double jeopardy grounds; and (5) that the trial court
erred by ordering consecutive sentencing. As to the alleged violation of the rule of
sequestration, we held, pursuant to State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010), that
the State had the right under Tennessee Rule of Evidence 615 to designate an
investigating officer as exempt from sequestration and the designated investigating
officer can remain in the courtroom during the testimony of other witnesses. We further
recognized, as a matter of plain error, that the jury‘s verdict for aggravated assault failed
to specify the mens rea with which the Defendant acted, and a majority of the panel
concluded that the Defendant‘s judgment of conviction for knowing aggravated assault, a
Class C felony, should be modified to reflect a conviction for reckless aggravated assault,
a Class D felony. We, therefore, modified the conviction in Count 2 to a Class D felony
reckless aggravated assault and modified Defendant‘s sentence in Count 2 to four years‘
incarceration to be served consecutively to the four year sentence for reckless homicide.
Finally, we concluded that the conviction for reckless aggravated assault did not merge
with the conviction for reckless homicide and affirmed all other aspects of Defendant‘s
convictions. On October 19, 2016, the Tennessee Supreme Court granted Defendant‘s
application for permission to appeal and remanded the case to this court for
reconsideration in light of the supreme court‘s recent opinion in State v. Howard, No.
E2014-01510-SC-R11-CD, __ S.W.3d __, 2016 WL 5933430 (Tenn. Oct. 12, 2016).
Upon reconsideration in light of Howard, we conclude that Defendant‘s conviction for
reckless aggravated assault must merge with his conviction for reckless homicide. The
judgments of the trial court are affirmed as modified, and the case is remanded for entry
of amended judgments of conviction.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER, J., joined. THOMAS T. WOODALL, P.J., concurred in part and dissented in
part and filed a separate opinion.

Brittney S. Hollis and Rob McKinney, Nashville, Tennessee, for the appellant, Randall T.
Beaty.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Lawrence Ray Whitley, District Attorney General; and Thomas Boone Dean and Jayson
Criddle, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION ON REMAND

Background

In June of 2010, Amber Peveler was living with her parents, Michael and Deborah
Needel, and her two daughters: the victim, who was born in January 2010, and L.P., who
was born on May 25, 2008. Because the victim and her sister are both minors, we will
not use their names. At the time, Ms. Peveler was separated from her husband, Chad
Peveler, because she came home from work one day and found a Lortab pill on the floor
of their home that had fallen out of Mr. Peveler‘s pocket. Ms. Peveler explained that Mr.
Peveler was addicted to pain pills, and she told him to leave because the two children
were always on the floor, and one of them could have put the pill into her mouth.

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 At the time of the separation from her husband, Ms. Peveler had worked for
Walmart in Hendersonville for approximately seven years and had become the store‘s
customer service manager. While working at Walmart, Ms. Peveler met Defendant, and
they became friends in March 2010. After her separation from her husband, Ms. Peveler
began spending more time with Defendant. One day in September 2010, Defendant
called Ms. Peveler and asked if she would be his girlfriend, and she said, ―yes.‖ Ms.
Peveler testified that Defendant was ―good with the kids, and . . . took them to the park.‖
She also cleaned Defendant‘s apartment, washed his clothes, and gave him ―[q]uite a bit‖
of money.

Ms. Peveler testified that Defendant was in drug rehab in July 2010, and she began
giving him Lortab pills from a prescription that she had for back pain. Ms. Peveler said
that Defendant told her that he needed the pills for his knee pain. Defendant later told her
that he was addicted to Lortab and Dilaudid. In October 2010, Ms. Peveler began buying
pills for Defendant from Marlon Thompson. She knew Mr. Thompson through a co-
worker at Walmart. Ms. Peveler admitted that she took the victim and L.P. with her to
buy pills from Mr. Thompson on multiple occasions.

Ms. Peveler testified that while she was working, her parents or grandmother cared
for the victim and L.P. She spent time with Defendant during the month of October
2010, and on one occasion, she and the children spent the night at Defendant‘s apartment.
Ms. Peveler testified that she noticed bruises on the victim, including her neck, sometime
between October 17 and 23, 2010. Ms. Peveler testified that, even though she made
―good money‖ working at Walmart and she lived rent-free with her parents, she began
having financial difficulties because she was giving so much money to Defendant. She
began stealing from Walmart and eventually lost her job and was arrested for theft on
Monday, October 25, 2010. Although she had no income, Ms. Peveler continued giving
money to Defendant.

Ms. Peveler testified that the victim and L.P. were with her October 26-28, 2010,
and they spent time at Defendant‘s apartment. She said that on October 26, 2010, she
and Defendant ―just hung out and played with the kids.‖ Ms. Peveler testified that she
and the children spent the night at Defendant‘s apartment that night and they remained at
the apartment for most of the following day, Wednesday, October 27, 2010. Ms. Peveler
and the children later met Ms. Peveler‘s mother, Deborah Needel, for dinner at Pizza Hut
in Rivergate. Ms. Peveler noted that on Wednesday, October 27, Defendant slipped and
fell while carrying the victim to the car. Her upper lip hit Defendant‘s collar bone and
was bleeding. She also noted that on Tuesday or Wednesday, October 26-27, the victim

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fell off the couch and hit the back of her head on the floor at Mrs. Needel‘s home.
However, there were no unusual effects following those events.

On Thursday, October 28, 2010, Ms. Peveler, the victim, and L.P. spent most of
the day with Defendant. Ms. Peveler and the children later met Mrs. Needel for dinner at
Captain D‘s in Gallatin. At dinner, the victim got sick and vomited. Ms. Peveler thought
that the victim had a french fry stuck in her throat. Later that evening, Ms. Peveler and
Mrs. Needel were giving the victim and L.P. a bath. Ms. Peveler noted that the victim
was acting ―[l]ike a baby, splashing and playing around, playing with her toys.‖ Ms.
Peveler did not notice any ill effects of the victim from having vomited earlier.
However, when Mrs. Needel took the victim out of the bathtub she noticed bruising on
the victim‘s left buttock.

Ms. Peveler testified that on October 29, 2010, she was putting the victim and L.P.
down for a nap at approximately 12:30 p.m. when Defendant called and asked her to buy
more pills from Mr. Thompson. She said Defendant was going to sell the pills in order to
make some money to pay her back $200 that he owed her so that she could make her car
payment. Ms. Peveler called Mr. Thompson and arranged to meet him at the Walmart in
Hendersonville at 5:00 p.m. Ms. Peveler testified that she and the two children fell
asleep and awoke at approximately 3:30 p.m. Defendant called and asked when they
were going to leave the house. He continued calling her until she arrived at his apartment
with the victim and L.P. Ms. Peveler testified that she arrived at Defendant‘s apartment
at approximately 4:30 to 4:45 p.m. and Defendant met her at the truck. He gave her $80
to purchase the pills and asked if L.P. could stay with him. When L.P. refused to stay,
Defendant asked if the victim could stay with him, and Ms. Peveler agreed. Defendant
then took the victim out of the truck, still in her infant carrier, and took her inside the
apartment. The victim was awake at the time, and Ms. Peveler was talking to her.

Ms. Peveler then drove to the Hendersonville Walmart to meet Mr. Thompson.
He walked up to her car window, and she told him that she did not have enough money to
purchase the eight pills as originally requested and that she wanted to purchase six. Ms.
Peveler testified that Mr. Thompson spoke to L.P. and asked about the victim. Ms.
Peveler then told Mr. Thompson that the victim was with Defendant. After the
transaction, Ms. Peveler spoke with Defendant and told him that she was driving back to
his apartment. When Ms. Peveler arrived at Defendant‘s apartment, he walked outside to
get L.P. and help with the diaper bag. She walked into the apartment and saw the victim
sleeping in her infant carrier at the end of the couch. Ms. Peveler asked Defendant to lay
the victim down in the back bedroom while she cooked some Ramen noodles for L.P.
Defendant then took the victim out of the infant carrier and placed her in the back
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bedroom. Ms. Peveler gave Defendant the pills that she purchased, and he placed them in
a cellophane cigarette package. While Ms. Peveler fed L.P., Defendant was on the
phone. He then announced that they needed to ―meet a guy to buy the pills.‖ Ms.
Peveler went to the back bedroom to get the victim, and she noticed that ―something
wasn‘t right.‖ She testified:

[The victim] was at an angle here at the end of the bed, and she was
laying on her back, and I never put [the victim] on her back. She always
laid on her belly.

. . .

[Defendant] had placed a pillow on the right side of her—no, her left
side, but right here. And a pillow over top of her head. And he had placed
a blanket on her, but it was weird how he put the blanket because the
blanket was up to her chest and her hands were outside of the blanket.
Instead of just leaving her fully covered, her hands were, like, by her side.

Ms. Peveler testified that she tried to wake the victim but the victim did not
respond. Ms. Peveler then opened the victim‘s eyelids and noticed that her pupils were
extremely dilated. She picked the victim up and carried her into the hallway and told
Defendant that something was wrong with the victim. Defendant looked at the victim and
walked into the kitchen to get a cup of water. He sprinkled some of the water on the
victim‘s face, but she did not move. Ms. Peveler placed the victim on the floor, and
Defendant determined that she was not breathing. He performed CPR on the victim, and
when Ms. Peveler suggested that they call for an ambulance, Defendant said that they
would drive the victim to the hospital. Ms. Peveler then picked up the victim, and
Defendant drove them and L.P. to the emergency room.

When they arrived at the hospital, Defendant dropped Ms. Peveler and the victim
off at the emergency room entrance while he and L.P. parked the truck. Ms. Peveler
walked inside the emergency room and told a staff member that the victim was
unresponsive. The victim was immediately taken away to a room for treatment. At some
point, Defendant walked into the room and began yelling and cursing. A nurse told
Defendant to calm down or he would have to leave. Ms. Peveler and Defendant then
walked outside to smoke while the victim was taken for a CT scan. Ms. Peveler testified
that while they were outside, Defendant suggested that they tell the following story: ―It
was that I [Ms. Peveler] had the girls the whole time, that I never left [the victim] with
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[Defendant], that we were supposed to go get pizza, and that‘s when I found [the victim].
I was the one that put her down for a nap.‖ After the victim returned from having the CT
scan, Ms. Peveler asked Defendant to leave because Mr. Peveler would soon be arriving
at the hospital. Ms. Peveler was then advised that the victim had bleeding on the left side
of her brain, and she was having seizures and that she would be taken by LifeFlight to
Vanderbilt Children‘s Hospital.

Ms. Peveler‘s mother drove Ms. Peveler and L.P. to Vanderbilt, and they were
joined by Mr. Peveler and other relatives. During that time, Ms. Peveler was texting
Defendant. Later that night, Mr. and Ms. Peveler were advised how serious the victim‘s
injuries were. Throughout the evening, Ms. Peveler continued texting Defendant
―[a]bout how [they] needed to stick to the story.‖ On Saturday evening, October 30,
2010, Ms. Peveler met with detectives at the Hendersonville Police Department. She
―told them the first story that [Defendant] had said that we needed to stick to.‖ But
―[t]hey knew it wasn‘t the truth.‖ During a smoke break, Ms. Peveler phoned her friend,
Rebecca Wyatt, and she asked Ms. Wyatt to tell police that she met Ms. Peveler at
Walmart to give her some gas money. However, Ms. Wyatt was not willing to lie for her.
Ms. Peveler finally told Mr. Peveler the truth about what happened, and then she told
police.

After meeting with police in Hendersonville, Ms. Peveler returned to Vanderbilt to
be with the victim. She testified:

The doctors met with us and said that they were going to do their
second brain test.

. . .

They brought in a person that looks at their eyes. And he said that
the retinas were detached from her eyes. And that there was no eye
movement. There was bleeding from behind her eyes. And then, once he
left, they took her off the breathing machine and she quit breathing and then
they hooked her back up.

. . .

The doctor pronounced her dead at 12:41 a.m. Sunday morning.

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 After the victim was pronounced dead, her body was maintained on a breathing
machine to preserve her organs for transplant.

Colby Carroll, a nurse at Hendersonville Medical Center‘s Emergency Room,
testified that she was working on October 29, 2010, when the victim was brought into the
hospital. She said:

I remember—I remember the event because, fortunately, it‘s not one
that you see very often. Just the emotion from it will stick with you for a
very long time. It was a—it stands out pretty vividly, actually.

One of our—our triage nurses or the area that you start out in when
you come into the ER, that little section there where you sit with the nurse,
tell them what‘s going on, how long it‘s been going on, that kind of thing—
the lady that was out front came back with a small child in her arms,
brought her into room 1, said she needed help because the child was
unresponsive. The mother was in tow at that point.

She came into the room and they laid her down and we began
working on her at that point. The biggest thing that stands out really
though is the reaction of the mother‘s boyfriend at the time that it all
occurred.

. . .

Me and Dr. Harrison, who was the attending [physician] that night,
were trying to establish some sort of intravenous access, a way to give
medications to the patient that would work effectively and quickly. We
were on the far side of the bed. The boyfriend of the mother came running
through the door, yelling and screaming, that kind of thing, cussing, and
was just very, very aggressive.

. . .

Generally, when you have upset parents, that kind of thing, you have
victims of trauma that come in, and parents will come in the door, that kind
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 of thing. They can be very, very loud. And it‘s just, you know, parents‘
protective behavior, you know. But the thing that got me with him was that
he didn‘t—he never looked at her. He screamed and he yelled at us,
cussing, that kind of thing, but her never looked at her.

When you have a parent that comes in and is scared for their child,
they may be yelling, but they‘re looking at the child. They look at them
and say, ―What‘s going on? Why are they doing this? Why are they doing
that?‖ That was never the case at that point.

It didn‘t last very long, but I will remember it. And at that point we
asked him to leave. The anger was there; the concern wasn‘t.

Ms. Carroll noted that the victim arrived at the hospital at approximately 5:50 p.m.
on October 29, 2010. Her notes contained the following history concerning the victim:

According to this, the mother stated that the patient had two emesis,
which is a case of vomiting. She had two cases of vomiting yesterday.
Drank a bottle, however, the night before and then that morning without
any difficulty. And then stated that the patient was taking a nap. The
mother placed the patient in a car seat and then went back to the patient and
was not responsive and they brought them into the hospital.

Ms. Carroll testified that the victim was ―posturing‖ when she arrived at the
emergency room. She explained that ―posturing‖ is similar to a seizure and is an
indication of either ―head injury or seizure or both. One could be caused by the other.‖
Ms. Carroll noted that there was bruising on the victim‘s neck and buttocks. A physical
assessment reveled that the victim was not responsive to any sort of stimulus. The reason
for the victim‘s non-responsiveness was head trauma.

Ms. Carroll testified that the victim stopped breathing on her own at 6:05 p.m., and
―at that point, respiratory was bagging her not for support but for life sustaining
measures.‖ She noted that various measures were taken to sustain the victim‘s life such
as the placement of an intraosseous line to inject fluids directly into the victim‘s bone
marrow, the use of atrophine to raise her heart rate, and intubation to assist with her
breathing. The victim received a CT scan and, once stabilized, was transported by
LifeFlight to Vanderbilt Children‘s Hospital at 7:10 p.m.

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 Dr. Duane Harrison, an emergency room doctor at Hendersonville Medical Center,
was qualified as an expert in emergency medicine. He testified that while the victim was
in the emergency room ―either a family member or someone that came in, was somewhat
belligerent, and I rather sternly asked him to remove or be removed.‖ Dr. Harrison
further noted that the person ―was making demands, he was using profanity, and it wasn‘t
something that we needed at the time, and it was distracting to what I was trying to get
my team to do.‖

Dr. Harrison went through the examination process of the victim in detail. He
noted that there was ―bruising on her neck, on her glute or butt cheek and in the inguinal
area right below her stomach as well on the left.‖ Dr. Harrison testified:

And that is put there because it is inconsistent with what I hear, but
not just because it‘s inconsistent. It‘s when I ask if the child has fallen, has
there been any injury, and I hear no, and then I see the bruising. I‘m
putting it there to reflect why. And it‘s also so I can go back and make sure
I check that something else hasn‘t happened.

He did not notice any blunt trauma to the victim‘s head.

Concerning the results of the victim‘s CT scan, Dr. Harrison testified:

Well, what it says is there‘s a large frontel parietal and temporal,
temple, area subdural hematoma. That just means that underneath one of
the coverings of the brain—and there are three—there has been some
bleeding. And the bleeding itself is problematic, but not as—it‘s
problematic—it‘s problematic in the fact that it indicates something has
happened, but what is more problematic is what it does to the brain.
Because it accumulates, it has to make way for the space it needs so it
accumulates. And as it accumulates, it begins to push—it begins to push
the brain out of the way.

And that‘s what we‘re seeing when they say there‘s a mass effect,
meaning we stick a mass down in there that shouldn‘t be there—blood, and
we make way for it by pushing the brain to the other side. And pushing the
brain causes some of the things that we worry about. It causes the loss of
consciousness, it causes depression of the breathing, it causes the abnormal
posturing that we see in her extremities.
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 And so we now have a reason for why we might see some of the
things that we see there. There‘s something that has happened that has
caused the bleeding to occur and that‘s why the scan is there, and that‘s
what it showed us shortly after we obtained it.

Dr. Harrison testified that the victim‘s skull was not fractured which he did not
find unusual. He explained that the bone structure of a nine-month-old baby is different
than that of an adult:

Well, the bones are softer, but they‘re also not fused, for lack of a
better word, so that there is play to allow the head to grow. There are
growth plates and suture lines, and it is not uncommon to see intracranial
problems without trauma, some because of the softness of the bone and the
ability for it to move in and out, but the other is that there is a significant
number of cases that we see that we see this in what we call shaken baby
syndrome. In fact, it‘s one of the hallmarks in shaken baby syndrome
where the rotation itself causes tearing and the bleeding occurs from that
instance.

So while we frequently see patients without obvious head trauma,
we also see those same patients with intracranial problems like bleeding
and bruising that occur simply from the mechanism of trauma, and the
mechanism of trauma can be rotational and shaken baby syndrome is
probably the one at the top of the list.

Sergeant John Coarsey of the Hendersonville Police Department testified that
during the early morning hours of October 30, 2010, he was asked to conduct an
interview with Defendant. At approximately 4:00 a.m., Sergeant Coarsey and a patrol
officer approached Defendant‘s apartment and knocked on the door. Defendant answered
the door and was ―very cordial‖ inviting the officers inside. The apartment was in
disarray, and there was a woman that Defendant identified as his ―girlfriend‖ asleep in
the back bedroom. Sergeant Coarsey identified a recording of the interview he conducted
with Defendant which was played for the jury. Defendant also wrote out a statement
which had been misplaced and was not available for trial. Sergeant Coarsey testified that
Defendant was cooperative and cordial during their interaction with him.

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 Detective Tim Bailey of the Sumner County Sheriff‘s Office testified that on the
morning of October 30, 2010, he was asked to help investigate the present case. He
interviewed Ms. Peveler‘s parents and the victim‘s grandparents, Mike and Deborah
Needel. He also photographed Ms. Peveler‘s bedroom and the couch from which Ms.
Peveler said that the victim fell the previous Wednesday. Mrs. Needel stated that she
witnessed the victim‘s fall from the couch.

Detective Bailey testified that he photographed the victim‘s car seat or infant
carrier and collected it as evidence. He also obtained consent to search Ms. Peveler‘s cell
phone. The phone was taken back to the Sheriff‘s Office, and they ―basically made a
mirror copy of it with some software that the sheriff‘s department has.‖ The phone
contained certain text messages from Defendant to Ms. Peveler which Detective Bailey
read into the record. Detective Bailey testified that according to medical records, the
victim arrived at the emergency room at 5:50 p.m. on October 29, 2010. At 7:24 p.m.
that same night, Defendant sent the following text message to Ms. Peveler: ―I‘ve been
praying so much, baby. It‘s a shame that it took this to happen to make me propose to
you. I hope you tell Chad [Mr. Peveler] that I‘m your fiancé. I love you, baby.‖
Defendant sent the following additional text message at 7:41 p.m. on October 29, 2010,
while Ms. Peveler was at the hospital: ―Baby, how‘s she doing? Pls . . . answer me,
sweetheart [??!!!]‖ Defendant sent the following messages to Ms. Peveler on October 30,
2010:

6:38 p.m. – ―Hey,babe, you still busy? I hope you‘re still coming over.‖
6:43 p.m. – ―Can you call me p-l-s?‖
6:47 p.m. – ―Why are you acting like this? Just because you are with Chad?‖
8:34 p.m. – ―You going [to] call me back, babe?‖
8:34 p.m. – ―I miss you[.]‖

Detective Bailey testified that he interviewed Defendant at 4:00 a.m. on October
30, 2010, and he later obtained Defendant‘s cell phone records. He noted that Ms.
Peveler was interviewed at 5:50 p.m. on October 30, 2010. Ms. Peveler told Detective
Bailey that she was at the hospital when she received Defendant‘s first text message on
October 29, 2010. She also communicated with Defendant during breaks while she was
being interviewed by police on October 30, 2010. Detective Bailey thought Ms.
Peveler‘s interview process took four to six hours.

Detective Bailey testified that Ms. Peveler‘s cell phone records, based on cell
phone tower information, corroborated her story that on October 29, 2010, she drove to
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the area of Defendant‘s house, then left Defendant‘s house and drove to the area of
Walmart, and went back to the area of Defendant‘s apartment and then to the area of
Hendersonville Hospital. Detective Bailey testified in detail concerning calls made from
Ms. Peveler‘s cell phone on October 29 and which cell phone tower or sector the calls
were made from.

On November 1, 2010, Detective Bailey and Detective Bachman drove to
Defendant‘s apartment. They spoke to Defendant and asked him to accompany them to
the Hendersonville Police Department to give a detailed interview, and Defendant agreed
to do so. Detective Bailey testified that Defendant‘s initial statement was identical to
what Ms. Peveler first told them. During the interview, Defendant changed some of his
story. Detective Bailey noted that, when Defendant was left alone at one point during the
interview, he read one of the investigator‘s notes.

Dr. Amy Fleming, a pediatrician employed with Vanderbilt University, is an
expert in pediatrics and child abuse. On October 30, 2010, she was the physician on call
for the Child Abuse Response and Evaluation Team (CARE) and was asked to come to
the intensive care unit at Vanderbilt to evaluate the victim. Dr. Fleming had reviewed all
of the records relating to the victim, and she was familiar with the course of treatment
that was provided to her by Vanderbilt.

Dr. Fleming testified that, when the victim arrived at Vanderbilt Children‘s
Hospital, she was in cardiac and respiratory failure. Dr. Fleming said:

[The victim] was then immediately taken up to the intensive care
unit at Vanderbilt. And there they continued to try and support her by
breathing for her with a ventilator, by giving her fluids, by giving her
medicine to try to decrease the pressure in her brain because they knew that
she was having swelling in her brain. And they actually put in a monitor
into her brain to try and measure how high that pressure was. The
neurosurgeons and the pediatric surgeons evaluated her.

Dr. Fleming testified that the neurosurgeons reviewed all of the scans which
revealed that the victim had subdural hematoma, or a blood clot, on the outside of her
brain as a result of trauma. They also determined that there were no surgical options to
remove the clot. Dr. Fleming noted that the victim‘s brain was extremely swollen. At
that point, Dr. Fleming evaluated the victim, who was intubated. The victim already had
one examination for ―brain death‖ that day, and she had been declared ―brain dead at that
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point.‖ The victim also had a ―cerebral profusion study‖ to look at the ―blood flow to the
vortex of the brain, and that was positive for brain death as well.‖ Dr. Fleming testified
that the victim had a second examination for brain death the following morning and the
victim was again declared brain dead. Her organs were later harvested for donation on
November 1, 2010. It was Dr. Fleming‘s opinion that the victim suffered ―abusive head
trauma.‖ She specifically testified that a fall from a couch would not have caused the
head injury. Dr. Fleming testified that the ―most likely mechanism for all of these things
is some combination of shaking and impact of her head against a hard surface.‖

Dr. Fleming testified that she spoke with the victim‘s parents, Chad and Amber
Peveler, as part of her evaluation. She said that Ms. Peveler gave the following
statement:

And [Ms. Peveler] stated that [the victim] had been acting
completely normally [sic] on the morning of the trauma and that she had
been playing with her older sister.

At some point they went over to [Defendant‘s] home, who is a friend
of [Ms. Peveler], [the victim‘s] mom. And Mom said that she was trying to
put her to sleep and she was laying—she had [the victim] laying on her
chest and was trying to put her to sleep, and she went to put her down in the
back bedroom.

And then about 20 minutes later, she went back to get her, and [the
victim] wouldn‘t wake up at this point. She said she was limp and not
responding to her. And so her friend, [Defendant], had tried to get a pulse
and couldn‘t find it and tried to do CPR and that didn‘t work and tried to
splash water on her face and that didn‘t work.

So they got into their truck and drove to the emergency room right
away at that point.

Dr. Fleming noted that the victim had bruising on her face, buttocks, and around
her vaginal area. ―She had bruising on her chest and on her inner thigh and a bruise on
her knee.‖

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 Concerning the findings from the victim‘s ophthalmologic exams, Dr. Fleming
testified:

One of the concerning findings from her ophthalmologic exams, or
her eye exam, was obtained by looking through the pupil at the inside of the
eyeball. So the eyeball is actually a globe and it has fluid inside it and you
can see all the way through using special lenses to the back, which is called
the retina. And she had retinal hemorrhages, which are seen on both sides.
These are related to her abusive head trauma.

We also had something called retinoschisis, which means that
actually part of the retina was torn off the back of the inside of the eye, and
that is almost never seen in anything other than abusive head trauma.

When asked about the time frame of the victim‘s injuries, Dr. Fleming further
testified:

It‘s very difficult to give a specific time, but the child would not
have been acting normally after this happened. So the fact that mother told
me that she was acting normally the morning of [sic] means to me that this
happened after that point in time.

There can be a wide range of symptoms that happen after this from
fussiness to going directly into coma, but she‘s not going to have
progression like this that‘s so rapid when she comes to the hospital without
it having been progressing before.

I would expect that this happened within the day, probably within 12
to 18 hours at the most prior to the time that she showed up in the hospital.

Dr. Fleming testified that the victim‘s injury was a ―violent inflicted injury‖ most
likely related to shaking. She said:

The shaking causes the brain to move back and forth and rips tiny
little veins that sit between the brain and move out from the brain. That‘s
how you get the subdural hemorrhage.

- 14 -
 The shaking causes the shearing forces, so rubbing the two things
next to each other, which caused the retinal hemorrhages in the eyes, and
then the fact that she has this swelling on the outside of her skull on more
than one side. Actually, based on the medical examiner‘s evaluation, she
had more than one impact to her head against a hard surface.

Dr. Fleming testified that she had seen injuries similar to the victim‘s from a
horrific car accident or a fall from a second or third story building.

Dr. Bridget Eutenier, an associate medical examiner at Forensic Medical, the
Office of the Medical Examiner in Nashville, performed an autopsy on the victim. She
determined that the cause of death was blunt force injuries to the victim‘s head, and the
manner of death was homicide. Dr. Eutenier also defined the circumstances of death as
―[a]ssaulted by other(s).‖ She noted that the victim was declared legally dead at 12:41
a.m. on October 31, 2010. The victim‘s bodily functions were continued until after 4:00
a.m. on November 1, 2010, at which time the baby‘s organs were harvested for donation.

Dr. Eutenier described her external observations of the victim‘s head as follows:

There were two faint blue contusions on the posterior aspect of the
left side of the head and they measured one-half and five-eighth‘s inch.

There was a one and one quarter by one inch slight blue contusion
on the right side of the head. There was a faint three-quarter inch area of
brown discoloration on the left side of the jaw. And a one-and-one half
inch faint brown area of discoloration on the right side of the jaw.

Dr. Eutenier further testified that the contusions on the victim were indicative of
―some force applied, some impact, of this child‘s head.‖ A third contusion was
discovered on the posterior of the victim‘s head.

Dr. Eutenier found a seven-centimeter hemorrhage on the inside of the victim‘s
scalp on the right posterior side of her head. There was a second seven-centimeter
hemorrhage in the middle of the victim‘s head and a third hemorrhage measuring ten-
and-a-half centimeters by nine centimeters closer to the front left side of her head. In
addition to the damage to the victim‘s brain, Dr. Eutenier found a ―diffuse subdural
hemorrhage of the spinal cord.‖ She also found ―bilateral optic nerve sheath

- 15 -
hemorrhages, retinal hemorrhages of the left eye, and possible retinal hemorrhages of the
right eye[.]‖ There were also blunt force injuries to the victim‘s torso. Dr. Eutenier
testified: ―The bruises that she had on her torso did not cause her death, but they are an
indication of trauma occurring.‖ Concerning bruising to the victim‘s neck, Dr. Eutenier
testified:

Well, by the time I did the autopsy, it was just an area of
discoloration so I could not definitively conclude based on the autopsy that
it was a bruise. But after reviewing medical records and photographs from
the hospital, there were bruises on the jaw, and they may or may not have
occurred at the same time that the injuries—the other injuries of the head
occurred.

Dr. Eutenier testified that there was an abrasion of the left upper quadrant of the
victim‘s torso and three bruises on her buttocks. She did not find any evidence of old
injuries that would have occurred before August 2010. Dr. Eutenier explained that the
blunt force trauma to the victim‘s head did not fracture the victim‘s skull because:

Children have a very thin, pliable skull so they don‘t—it‘s not as
thick and calcified as an adult skull so it absorbs force a little differently
than adult skulls do so you can have blunt force injuries without skull
fracture.

Dr. Eutenier estimated that the injuries that caused the victim‘s death were
inflicted two to three days prior to her metabolic death, when her organs were collected.
Therefore, the injuries would have been inflicted on October 29 or 30, 2010. She also
testified the victim‘s injuries were consistent with a fall from a third floor window, and
she testified that the victim would not have acted normally after sustaining the injuries.
Dr. Eutenier could not rule out that there ―were not acceleration-deceleration injuries in
addition to the blunt force injuries that caused [the victim‘s] death.‖

Marlon Thompson testified that he knew Ms. Peveler through his ex-girlfriend,
Terika Perry. He admitted that he had sold drugs in the past and he had a felony drug
conviction in 2001. He also had convictions for driving on a suspended license,
trespassing, and criminal impersonation. Mr. Thompson testified that he had also
violated the terms of a previous probation.

- 16 -
 Mr. Thompson testified that he was selling Dilaudid pills to Ms. Peveler in
October 2010. He thought that he met her three or four times at the Home Depot in the
Rivergate area and in Hendersonville. Mr. Thompson recalled meeting with Ms. Peveler
on October 29, 2010. She had called him earlier in the day to set up the buy, but he could
not meet her until approximately 4:30 or 5:00 that afternoon because he had to take his
girlfriend to work at the Walmart in Hendersonville.

Mr. Thompson testified that he met Ms. Peveler in the Walmart parking lot and
walked up to her truck. He saw Ms. Peveler‘s older daughter in the back seat, but the
victim was not in the truck with her. Mr. Thompson noted that he had previously asked
Ms. Peveler not to bring the children with her to buy pills. He said that Ms. Peveler
ultimately purchased eight Dilaudid pills but he noted that she was four dollars short.
Mr. Thompson testified that Defendant called him on October 30 or 31, 2010, and asked
to buy some pills but Mr. Thompson refused to sell him any. Mr. Thompson gave a
statement to Detective Bachman and another officer a few days later.

Rebecca Wyatt testified that she previously worked with Ms. Peveler at the
Hendersonville Walmart and they were friends. On October 30, 2010, Ms. Wyatt
received a call from Ms. Peveler who asked if Ms. Wyatt would ―vouch‖ for her and say
that Ms. Peveler came to meet her at the Hendersonville Walmart to get twenty dollars
for gas money. Ms. Wyatt testified that she had seen Ms. Peveler interact with the victim
and L.P. and Ms. Peveler was ―a great mom. She was very good with them.‖

Philip Miceli, Defendant‘s cousin, testified that he and Defendant frequently
―hung out‖ and used drugs together in 2010. He was at Defendant‘s apartment on
occasions when Ms. Peveler was there with the victim and L.P. Mr. Miceli testified that
he sometimes held the victim while she was at the apartment. He noted that one time
while he was holding the victim, Ms. Peveler went outside to her vehicle and left the
victim alone with him and Defendant. Mr. Miceli testified that Ms. Peveler gave
Defendant money, which was sometimes sixty to one hundred dollars per day.

Michael Needel, Ms. Peveler‘s father, testified that Ms. Peveler, the victim, and
L.P. lived with him and his wife, Deborah Needel, until October 29, 2010. He noted that
Ms. Peveler was a good mother who was very patient with the victim and L.P. He never
saw Ms. Peveler spank the children. Mr. Needel testified that he had never noticed any
unexplained injuries or bruises on the victim prior to October 2010. He also had never
seen Ms. Peveler act angrily toward the victim or lay a hand on the child.

- 17 -
 Mr. Needel testified that Ms. Peveler was arrested for theft in October 2010 and
lost her job at Walmart. She also got behind on her car payment and insurance. Mr.
Needel testified that he went on a business trip to Colorado during the week that the
victim‘s injuries occurred. He returned from the trip on Friday, October 29, 2010. Mr.
Needel testified: ―I think it was about the week or so before I went to Colorado is when
we noticed that there were bruises underneath [the victim‘s] chin.‖ At that point, there
was a discussion with Mrs. Needel about the origin of the bruises. Mr. Needel suspected
that Mrs. Needel‘s mother, ―Granny Rose,‖ might have caused them. He had previously
seen ―Granny Rose‖ grab one of the children that she cared for. He testified:

You know, I don‘t know if they were—I‘m not sure if it was [L.P.]
or one of the other kids, because she watches five or six different kids. I
just want to clarify that. But she grabbed them—I guess they had said
something smart, and she had grabbed them that way.

So when we saw the bruises on [the victim], I just said, you know,
―Hey, I‘ve seen your mom do something very similar.‖

Mr. Needel testified that he received a call on Thursday, October 28, 2010, from
Mrs. Needel indicating that there were some bruises on the victim‘s bottom. He and Mrs.
Needel decided to discuss the matter further when he got back into town the following
day. Mr. Needel testified that he never got a chance to conduct a family meeting over the
bruises. During a layover in Dallas, Texas on Friday, October 29, 2010, Mr. Needel
received a call from his sister-in-law who informed him that the victim was being taken
to the hospital and that ―it was pretty serious.‖ When Mr. Needel arrived in Nashville, a
friend drove him to Vanderbilt Children‘s Hospital. While he was at the hospital, Mr.
Needel saw Ms. Peveler talking on her cell phone to someone. He assumed it was
Defendant.

Deborah Needel, Ms. Peveler‘s mother, testified that the victim and L.P. were
primarily cared for by herself, Ms. Peveler, and Mrs. Needel‘s mother. She said that in
October 2010, Ms. Peveler went to Defendant‘s apartment on a regular basis. Mrs.
Needel noticed bruises on the victim‘s face around the time of Ms. Peveler‘s birthday on
October 21, 2010. Mrs. Needel discussed the matter with her husband who suggested
that Mrs. Needel‘s mother caused the bruises on the victim.

Mrs. Needel testified that she saw Ms. Peveler, the victim, and L.P. on
Wednesday, October 27, 2010, when she met them at Pizza Hut for dinner. Mrs. Needel
- 18 -
then went to church, and sometime after she got home, the victim fell off the couch at the
Needel‘s home. Mrs. Needel did not notice any injuries from the fall. Mrs. Needel
testified that she met Ms. Peveler, the victim, and L.P. again for dinner at Captain D‘s on
Thursday, October 28, 2010. While they were at the restaurant, the victim vomited.
After they all arrived home from Captain D‘s, Mrs. Needel helped Ms. Peveler give the
victim and L.P. a bath. The victim seemed fine in the bathtub, but Mrs. Needel
discovered bruises on the victim‘s bottom when she took the victim out of the tub. Ms.
Peveler seemed surprised and said that she had no idea where the bruises came from.
Mrs. Needel later told her husband about the bruises, and he suggested that they would
discuss the matter when he arrived home on Friday, October 29, 2010.

On Friday, October 29, 2010, Mrs. Needel was at a church retreat when a friend
arrived and informed her that the victim had been injured. Mrs. Needel then went to
Vanderbilt Children‘s Hospital with Ms. Peveler and L.P. She testified that Ms. Peveler
was hysterical when she was later informed of the seriousness of the victim‘s injuries and
that the victim was ―probably not going to make it.‖ Mrs. Needel recalled that the term
―shaken baby [syndrome]‖ was mentioned. Mrs. Needel testified that Ms. Peveler never
―laid a hand on those girls‖ and that she only spoke to them when disciplining them, or
she placed them in time-out. Mrs. Needel had never noticed any unexplained bruises on
L.P. She also had never noticed unexplained bruises on the victim until Ms. Peveler
began spending more time with Defendant.

The parties agreed to the following stipulation as to the testimony of Ashley
Gillespie:

[Defendant] and Ashley Gillespie were dating in October of 2010.
[Defendant‘s] nickname for Ashley Gillespie is Smash. Ashley Gillespie
observed [Defendant] use drugs. When [Defendant] used drugs—used, he
would snort or inject the pills.

[Defendant] told Ashley Gillespie that Amber Peveler was his
roommate, Conrad‘s, friend‘s wife. [Defendant] told Ashley Gillespie that
Amber Peveler was providing him with drugs and a lot of money.

[Defendant] and Ashley Gillespie had plans to meet the evening of
October 29, 2010. [Defendant] left Ashley Gillespie a voice mail at 4:24
p.m. that will be introduced into evidence. Ashley Gillespie was already on
her way to [Defendant‘s] apartment in Hendersonville when [Defendant]
- 19 -
 called her to come get him at Hendersonville Hospital. When Ashley
Gillespie arrived at the hospital, she briefly saw [Defendant] and Amber
Peveler outside the hospital, but never spoke with Amber Peveler.

After [Defendant] and Ashley Gillespie left Hendersonville Hospital,
they returned to [Defendant‘s] apartment, got Chinese food and rented
movies. Ashley Gillespie was the woman in [Defendant‘s] apartment when
Sergeant Coarsey of the Hendersonville Police Department interviewed
[Defendant] around 4 a.m. on October 30, 2010.

Chad Peveler, the victim‘s father and Amber Peveler‘s husband, testified that he
and Ms. Peveler had separated in June of 2010 because of his addiction to narcotics after
having knee surgery. Mr. Peveler was living with his parents in Smyrna when he
received a call that the victim was injured. He arrived at the hospital, and he and Ms.
Peveler met with doctors who told them that the victim‘s condition was grave. The
victim was later declared brain dead, and her organs were donated. Mr. Peveler testified
that at the time he had not seen the victim or L.P. since August 2010.

Detective Jim Bachman of the Hendersonville Police Department was contacted
by Maria Lubrano, a Department of Children‘s Services caseworker, at approximately
10:00 to 11:00 p.m. on October 29, 2010, about a possible child abuse case referred from
Vanderbilt Children‘s Hospital. Detective Bachman met Ms. Lubrano at the hospital, and
they spoke to doctors. He also interviewed Ms. Peveler. Detective Bachman testified:

When I spoke to Amber [Peveler] of course, it‘s the first time I met
her, she came in to meet with me and Ms. Lubrano even though her child
was in the hospital. I got the basic information from her as far as her name
and address, that sort of thing. And started asking her what happened, who
was around the child recently, that sort of thing, caretakers. And she
mentioned that she came from [Defendant‘s] apartment to the
Hendersonville Hospital and that‘s how they got to Vanderbilt.

During that conversation, she began telling me that [Defendant] had
never been left alone with the children, didn‘t bathe the children, didn‘t
change their diapers, that sort of thing. Those sort of things were
unsolicited from me.

- 20 -
 Detective Bachman noted that Ms. Peveler‘s story seemed to be a ―little recited,‖
and he did not feel that she was being truthful. She told him that they never left
Defendant‘s apartment before the injury, and she also told him about the victim‘s fall
from a couch on Wednesday, October 27, 2010.

Detective Bachman testified that Ms. Peveler was interviewed at the police
department the following day, October 30, 2010, and he watched the interview from a
monitor in another room. Ms. Peveler initially told the same story that she had told
Detective Bachman earlier. However, she later said that she left Defendant‘s apartment
to get some money from Rebecca Wyatt. Detective Bachman testified that Ms. Peveler
eventually gave the following account of the events prior to the victim‘s injuries:

That account was that she was contacted by [Defendant] when she
was at her home in Gallatin to come to his apartment. So she did with the
girls. The account was that she got some money from [Defendant]. [The
victim] was left there with [Defendant]. She drove her other daughter,
[L.P.], to Wal[]mart Hendersonville, met Marlon Thompson in the parking
lot of Wal[]mart, bought the pills, and then drove back to [Defendant‘s]
apartment.

Detective Bachman testified that he interviewed Defendant on November 1, 2010.
He said:

[Defendant‘s] account was that Amber [Peveler] and the girls came
over to his apartment on the 29th of October and that they had not left the
apartment until they left to go to the hospital, that Amber had never left
until they left to go to the hospital with [the victim].

. . .

He said that when Amber discovered [the victim] unresponsive, they
had planned on going to get some pizza.

Detective Bachman testified that Defendant‘s story was very similar to Ms.
Peveler‘s initial account of what happened. He noted that Defendant was unemployed,
did not have his own ―place,‖ and he had ―personal family issues with a divorce and

- 21 -
children, that sort of thing.‖ Defendant did not like living at the apartment with his
roommate because it was not clean. Defendant was also seeing different women.

Detective Bachman testified that Defendant eventually told him that Ms. Peveler
left the apartment to buy pills for him in Madison. Defendant also gave a written
statement:

Amber [Peveler] and the kids got here sometime in the afternoon.
We decided we wanted to get a pizza or something to eat. She went to get
the baby from sleeping and the baby was limp. We got the kids in the truck
and I rushed us to the hospital. Sometime this week Amber had said that
[the victim] had fallen off the bed and had a knot on the back of her head.

Detective Bachman admitted that Defendant also gave a written statement during
the early morning hours of October 30, 2010, but it could not be located. Detective
Bachman testified at trial concerning the victim‘s cell phone records. He testified that
Ms. Peveler and Defendant were in contact with each other while Detective Bachman
was interviewing Mr. Peveler on October 30, 2010.

Detective Bachman next interviewed Defendant on the ride back to Tennessee
from Mississippi after Defendant‘s arrest. Defendant did not admit to killing the victim
or watching her at his apartment. He admitted that he did not respect women at the time
and that he had a drug problem. Defendant told Detective Bachman and Lieutenant Scott
that Ms. Peveler left his apartment on October 29, 2010, to buy some pills for him.
Detective Bachman noted that the original story told by Defendant and Ms. Peveler
protected Defendant.

On cross-examination, Detective Bachman agreed that the medical records
indicated that the victim was subjected to some abuse prior to October 29, 2010. He was
led to believe that Ms. Peveler‘s grandmother inflicted the bruises to the victim‘s neck.
However, after interviewing the grandmother, there was no evidence to support the
accusation.

Analysis

Defendant raises four issues on appeal. We will address them out of order because
Defendant‘s first and fourth numbered issues are somewhat intertwined.

- 22 -
 The Rule of Sequestration

Defendant’s Motion to Exclude Detective Bachman

Prior to voir dire, trial counsel asked for ―the rule.‖ The trial court instructed the
witnesses that they would have to remain outside until called to testify. The State
identified two possible rebuttal witnesses, and at the request of Defendant, they were also
excluded from the courtroom. Detective Bachman‘s presence in the courtroom was not
discussed. At approximately 8:15 on the morning of the fourth day of trial, Defendant
made an oral motion to exclude the ―State‘s representative,‖ Detective Bachman, from
testifying and presented the court with a copy of Mothershed v. State, 578 S.W.2d 96
(Tenn. Crim. App. 1978). The State asked for time to respond, and the trial court stated it
would rule on the motion at 9:00 a.m. before bringing the jury into the courtroom. When
the court reconvened, the State announced initially that they thought Defendant was
correct. The trial court stated it had done its own research and concluded the State had
the right to have ―the lead prosecutor in the courtroom unless there is prejudice.‖ During
the argument, counsel for the State continued to research and ultimately cited State v.
Bobby Gene Keck, No. 01C01-9401-CC-00017, 1997 WL 254228, at *9 (Tenn. Crim.
App. May 16, 1997), perm. app. denied (Tenn. Crim. App. Mar. 2, 1998). Defendant
stated that before Detective Bachman testified, he would like to examine him outside of
the presence of the jury. Because the jury was waiting, the hearing was continued until
the lunch break. After lunch, the trial court pointed out that Rule 615 was enacted after
Mothershed and denied Defendant‘s motion. Rather than call Detective Bachman to the
stand, counsel for Defendant asked the trial court to allow him to make a statement on the
record as an officer of the court specifying how Defendant was prejudiced by Detective
Bachman having been present in the courtroom. The request was granted. Generally,
trial counsel argued that Detective Bachman listened to the other witnesses and observed
cross-examination so as to be aware of the defense‘s strategy.

Defendant argues that the trial court committed reversible error by allowing
Detective Bachman to testify as the last witness for the State in violation of Rule 615 of
the Tennessee Rules of Evidence. The State, citing in its brief only Smartt v. State, 112
Tenn. 539, 80 S.W. 586 (1904) and Mothershed, conceded error but asserted the error
was harmless. We disagree with Defendant, and we are not bound by the State‘s
concession. See Barron v. State Dep‘t of Human Servs., 184 S.W.3d 219, 223 (Tenn.
2006); State v. Mitchell, 137 S.W.3d 630, 639-40 (Tenn. Crim. App. 2003). There was
no violation of sequestration because the State had the right under Tennessee Rule of

- 23 -
Evidence 615 to designate Detective Bachman, as an investigating officer, exempt from
sequestration. As such, Detective Bachman was allowed to remain in the courtroom
during the testimony of other witnesses, unless there was a compelling reason for the trial
court, in the exercise of its sound discretion, to exclude him. Tenn. R. Evid. 615; Jordan,
325 S.W.3d at 40. Because there still appears to be confusion about the applicability of
the exclusion of the State‘s designated representative under Mothershed, we will explain
how we reached this conclusion.

Sequestering the Prosecuting Witness

The practice in Tennessee of excluding the prosecutor from the courtroom until
the prosecutor testifies originated in Smartt. At the time Smartt was decided, Tennessee
Code Annotated section 40-2403 required a defendant to testify before any other defense
witness testified. See Brooks v. State, 406 U.S. 605, 608 (1972); Clemons v. State, 92
Tenn. 282, 21 S.W. 525, 525 (1893). Our supreme court in Smartt stated:

The attorney for the state has the right to such assistance as the
prosecutor can give him in the management of the state‘s case, and, upon
his request, it is not error to permit the prosecutor to remain in the
courtroom after the rule has been called for; but the court should impose as
a condition that the state, if it desires to use the prosecutor as a witness,
should examine him first.

Smartt, 80 S.W. at 588. Our court has characterized the ruling in Smartt as creating
―symmetry by preventing either party from having the advantage of a witness being able
to conform his testimony with that of other witnesses.‖ State v. Timmy Reagan, No.
M2002-01472-CCA-R3-CD, 2004 WL 1114588, at *17-18 (Tenn. Crim. App. May 19,
2004).

In 1972, the United States Supreme Court struck down Tennessee‘s statute which
required a defendant to testify first, holding that ―Defendant was deprived of his
constitutional rights when the trial court excluded him from the stand for failing to testify
first.‖ Brooks, 406 U.S. at 613. Brooks, in effect, ended the ―symmetry‖ created by
Smartt that had existed for sixty-eight years. Timmy Reagan, 2004 WL 1114588, at *17-
18.

In 1978, our court again addressed the sequestration of the prosecuting witness
listed on the indictment. Despite the fact that in 1978 a defendant no longer had to testify

- 24 -
first, the Mothershed court chose to reinforce the seventy-four-year-old Smartt decision,
stating:

However, the opinion in Smartt also notes that ―the court should impose as
a condition that the state, if it desires to use the prosecutor as a witness,
should examine him first.‖ Id. [Smartt v. State, 112 Tenn. 539, 551, 80
S.W. 586, 588 (1904).] We think the rule in Smartt is a reasonable
limitation on the provision of T.C.A. [§] 24-106 which purportedly
exempts parties from the operation of a sequestration order.

Mothershed, 578 S.W.2d at 100 (emphasis added). Although our court found a
―technical error‖ on the part of the trial court in failing to sequester the prosecuting
witness during a jury-out suppression hearing, it concluded that no substantial injury was
done to the defense.‖ Id.

Following Smartt, Tennessee Code Annotated section 24-106 was renumbered and
became section 24-1-204, which provided: ―Nothing in any section shall be construed to
require the parties, or either of them, to be put under the rule, when witnesses in any
cause in which the rule has been applied for and granted.‖ Section 24-1-204 was
subsequently repealed by 1991 Pub. Acts, c. 273 with the adoption of the Tennessee
Rules of Evidence and replaced by Tennessee Rule of Evidence Rule 615, which took
effect on January 1, 1991. See State v. Stephens, 264 S.W.3d 719, 738 (Tenn. Crim.
App. 2007).

Tennessee Rule of Evidence 615

Since 1991, sequestration of witnesses has been governed by Tennessee Rules of
Evidence Rule 615, which originally provided:

At the request of a party the court shall order witnesses, including rebuttal
witnesses, excluded at trial or other adjudicatory hearing. Sequestration
shall be effective before voir dire or opening statements if requested. The
court shall order all persons not to disclose by any means to excluded
witnesses any live testimony or exhibits created in the courtroom by a
witness. This rule does not authorize exclusion of (1) a party who is a
natural person, or (2) an officer or employee of a party which is not a
natural person designated as its representative by its attorney, or (3) a
person whose presence is shown by a party to be essential to the
presentation of the party‘s cause.

Tenn. R. Evid. 615 (emphasis added).
- 25 -
 We have found only one case dealing with sequestration of the designated
representative issued after Rule 615 became effective and before the Rule was amended
in 1997. In State v. Wingard, defense counsel asked for the rule to be applied to the
prosecutor when the first witness was called to testify by the State. The trial court
allowed the prosecutor to remain in the courtroom as an ―essential‖ person under Rule
615 subsection three (3). Our court stated:

We do not agree with the state‘s reliance upon subsection three (3).
Pursuant to subsection two (2), however, the state is permitted to designate
a representative. See N. Cohen, D. Paine, S. Sheppeard, Tennessee Law of
Evidence, § 615.2 (2nd ed. 1990). When applying the similar federal rule
of evidence, courts have previously held that such designations may include
investigating officers who will be testifying. See, e.g., United States v.
Martin, 920 F.2d 393, 397 (6th Cir.1990). In our view, Warden Smith, as
the chief official at the correctional facility and a participant in the search
for Defendant, would qualify as the state‘s designated representative or
―prosecutor‖ in this case.

State v. Wingard, 891 S.W.2d 628, 635 (Tenn. Crim. App. 1994). Although Wingard
does not specifically address what affect, if any, Rule 615 had on Mothershed, the case
implicitly stands for the proposition that the state‘s designated representative can remain
in the courtroom during the testimony of other witnesses without being required to testify
first, because that is precisely what had occurred in the case.

In 1997, Rule 615 was amended. Rule 615 now provides:

At the request of a party, the Court shall order witnesses, including rebuttal
witnesses, excluded at trial or other adjudicatory hearing. In the Court‘s
discretion, the requested sequestration may be effective before voir dire, but
in any event shall be effective before opening statements. The Court shall
order all persons not to disclose by any means to excluded witnesses any
live trial testimony or exhibits created in the courtroom by a witness. This
rule does not authorize exclusion of (1) a party who is a natural person, or
(2) a person designated by counsel for a party that is not a natural person,
or (3) a person whose presence is shown by a party to be essential to the
presentation of the party‘s cause. This rule does not forbid testimony of a
witness called at the rebuttal stage of a hearing if, in the court‘s discretion,
counsel is genuinely surprised and demonstrates a need for rebuttal
testimony from an unsequestered witness.

- 26 -
 Tenn. R. Evid. 615 (emphasis added).

The Advisory Commission Comments [1997] state the following concerning the
changes to Rule 615 as a result of the 1997 amendment:

The second change modifies the second category of persons not
sequestered. A ―party that is not a natural person‖ includes, among other
entities, a corporation and the State of Tennessee. Consequently, the
prosecuting attorney could designate a crime victim, a relative of a crime
victim, or an investigative officer. Like category (1), category (2) is a
matter of right. Category (3), in contrast, is a matter of judicial discretion.‖

(Emphasis added).

Following the effective date of the 1997 amendments to Rule 615, this court for
the first time addressed sequestration of the State‘s designated representative in Bobby
Gene Keck, a per curiam opinion in which this court stated:

In the present case, Agent Taylor was assigned the responsibility of
investigating alleged criminal conduct at the Highway Department. He was
clearly the representative or prosecutor for the state. As such, under
subsection (2), it was not a violation of Rule 615 to allow Agent Taylor to
sit at the State’s table during the testimony of the first five witnesses before
being called to testify. This issue is without merit.

Bobby Gene Keck, 1997 WL 254228, at *9 (emphasis added).

In State v. Elkins, 83 S.W.3d 706 (Tenn. 2002), the appellant claimed, among
other things, that the trial court erred by not sequestering the victim. Ultimately, our
supreme court concluded that the trial court committed reversible error in failing to
instruct on a lesser included offense. Elkins, 83 S.W.3d at 712. However, concerning
sequestration, Justice Drowota, writing for the unanimous court, stated:

Having so concluded, we need not address Defendant‘s assertion that the
trial court erred in allowing the victim to testify at the sentencing hearing
even though she had remained in the courtroom after the defense invoked
the rule of sequestration, Tenn. R. Evid. 615. Nonetheless, we note that
- 27 -
 Rule 615 does not mandate exclusion of all persons and permits counsel for
a party that is not a natural person to designate a person to remain in the
courtroom. The 1997 Advisory Commission Comments to Rule 615
specifically explain that this provision permits the prosecuting attorney for
the State of Tennessee to designate a crime victim as the person to remain
in the courtroom despite invocation of the rule of sequestration. Therefore,
on remand if the prosecution so desires, it may designate [the victim] as a
person to remain in the courtroom even if the defense again invokes Rule
615.

Id. at 713 (footnote added). Although the opinion does not cite Mothershed or Smartt,
the dicta in Elkins implies that Rule 615 supersedes the Mothershed rule requiring the
State‘s designated representative, albeit in Elkins the victim, to testify first or be
sequestered.

In 2004, for the first time since Rule 615 became effective, our court returned to
the Smartt rule requiring the prosecutor to be sequestered or to testify first, stating:

We do not believe that Rule 615 affects Smartt‘s requirement that the
state‘s designated person testify first. We note, though, that Smartt was
decided when a testifying defendant was statutorily required to be the first
witness for the defense. See Clemons v. State, 92 Tenn. 282, 284, 21 S.W.
525 (1893). The rule in Smartt created a symmetry by preventing either
party from having the advantage of a witness being able to conform his
testimony with that of other witnesses. See Brooks v. State, 406 U.S. 605,
611, 92 S. Ct. 1891, 1894 (1972). That symmetry was ended in Brooks
when the United States Supreme Court held that making Defendant testify
first or not at all violated Defendant‘s right against self-incrimination and
right to due process. Id. 406 U.S. at 611 n. 5, 92 S. Ct. at 1894-95.

Although Defendant no longer need testify first, we believe the
Smartt rule generally remains in effect as shown in Mothershed. We say
generally, however, because an expert witness is usually allowed to hear the
testimony of other witnesses in order to formulate an opinion or respond to
the opinions of other expert witnesses. See State v. Bane, 57 S.W.3d 411,
423 (Tenn. 2001); Tenn. R. Evid 703. In Bane, our supreme court stated
that ―allowing an expert witness to remain in the courtroom as an ‗essential
person‘ generally does not create the risk that the expert will alter or change
factual testimony based on what is heard in the courtroom.‖ Id. This

- 28 -
 necessarily entails the expert testifying after other witnesses. We are
mindful that Agent Campbell essentially gave expert testimony.

Timmy Reagan, 2004 WL 1114588, at *17-18 (emphasis added). Bane, which involved
the ―essential‖ person exclusion under Rule 615 subsection three (3), was the only post-
Rule 615 case cited in Timmy Reagan. It is important to note that the exclusion provided
by Rule 615 subsection three (3) differs fundamentally in its manner of application from
the exclusion provided in subsections one (1) and two (2). As previously stated, the
exception to witness exclusion in subsection three (3) ―is a matter of judicial discretion,‖
whereas the exception in subsections one (1) and two (2) is a ―matter of right.‖ Tenn. R.
Evid. 615 Advisory Comm‘n Comments [1997]; see Stephens, 264 S.W.3d at 738; State
v. Reginald Fowler, No. E2009-00293-CCA-R3-CD, 2010 WL 3774413, at *18 (Tenn.
Crim. App. Sept. 29, 2010).

Following Timmy Reagan, our court issued State v. Timothy Wright, in which the
court stated:

The Court of Criminal Appeals has said, ―We do not believe that Rule 615
affects Smartt‘s requirement that the state‘s designated person testify first.‖
State v. Timmy Reagan, No. M2002-01472-CCA-R3-CD, slip op. at 18
(Tenn. Crim. App., Nashville, May 19, 2004). That said, the Timmy
Reagan Court recognized an exception in the case of expert witnesses, see
id., slip op. at 18; State v. Bane, 57 S.W.3d 411, 423 (Tenn. 2001), and
more significantly, that court applied the rule that the party aggrieved by
the designated witness‘s deferred testimony must show prejudice via the
designated witness ―improperly chang[ing] his [or her] testimony while
hearing other witnesses testify,‖ Timmy Reagan, slip op. at 18; see
Mothershed v. State, 578 S.W.2d 96, 100-01 (Tenn. Crim. App. 1978).

State v. Timothy Wright, No. W2005-00525-CCA-R3-CD, 2005 WL 3533343, at *3
(Tenn. Crim. App. Dec. 27, 2005).

Next, in State v. Stephens, 264 S.W.3d 719 (Tenn. Crim. App. 2007), our court
again affirmatively quoted the Timmy Reagan language ―we believe the Smartt rule
generally remains in effect as shown in Mothershed.‖ Stephens, 264 S.W.3d at 739. As
was the case in Timmy Reagan and Timothy Wright, Stephens did not cite Wingard,

- 29 -
Bobby Gene Keck, or Elkins. Timmy Reagan was the only post-Rule 615 sequestration
case cited by our court in Stephens.1

In State v. Jordan, our supreme court addressed the trial court‘s refusal to allow
testimony of Defendant‘s parents during the sentencing phase of a first degree murder
case because they had violated the rule of sequestration by remaining in the courtroom
during the guilt/innocence phase of the trial. Defendant‘s pretrial motions to exempt
Defendant‘s family from sequestration had been denied. In analyzing Rule 615, Justice
Clark, writing for a unanimous court, stated:

Our current Rule 615 sets forth several specific exceptions to its
application. First, parties who are natural persons may not be excluded
from the courtroom while witnesses are testifying. Second, if a party is not
a natural person but is, for instance, a corporation, the party’s counsel may
designate a natural person who may not be sequestered. Or, if the State is
a party, the prosecuting attorney may designate a crime victim, a crime
victim‘s relative, or an investigating officer as immune from sequestration.
Tenn. R. Evid. 615 advisory comm‘n cmts. to 1997 amend.

. . .

These exceptions to the general rule of sequestration illustrate the tensions
between the underlying purpose of the rule and other, equally significant
concerns. Thus, a party to the litigation will not be prevented from hearing
testimony, even if he or she plans to testify and even though a party has the
most incentive to tailor his or her testimony. Also, a witness who is
expected to offer expert opinion testimony about facts testified to, as
opposed to testimony about the facts themselves, is acknowledged to be
outside the scope of the rule. Both exceptions make clear that the rule does
not establish a concrete line which may never be crossed. Rather, as with
other rules of evidence, there is latitude within which a trial court is
expected to exercise its discretion. That discretion should be exercised with
the aim of protecting the goals of the rule and should take into account the
risk that the witness for which an exception is sought ―will alter or change

1
We note, that in all of the sequestration cases cited above in which the appellate court found the
trial court erred in either sequestering or not sequestering a witness, the appellate court found the error did
not amount to reversible error.
- 30 -
 factual testimony based on what is heard in the courtroom.‖ [Bane, 57
S.W. 3d at 423].

State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010) (emphasis added) (additional citations
omitted). The only reasonable reading of Jordan is that if a person is immune from
sequestration under Rule 615 subsection (1) or (2), then that person may remain in the
courtroom during the testimony of other witnesses, unless in the exercise of its discretion,
the trial court determines that the witness should be excluded to protect the goals of the
Rule 615.

Seven days after Jordan was issued, our court in State v. Reginald Fowler turned
the ―belief‖ expressed in Timmy Reagan, Timothy Wright, and Stephens—that Rule 615
did not affect the requirement from Smartt that the State‘s designated representative
testify first—into an affirmative obligation that the State‘s representative testify first,
stating:

A designated representative or prosecuting witness, however, is required to
testify before other witnesses. See Stephens, 264 S.W.3d at 738-39; State
v. Smartt, 112 Tenn. 539, 80 S.W. 586, 588 (Tenn. 1904); Mothershed v.
State, 578 S.W.2d 96, 100-01 (Tenn. Crim. App. 1978).

State v. Reginald Fowler, No. E2009-00293-CCA-R3-CD, 2010 WL 3774413, at *18
(Tenn. Crim. App. Sept. 29, 2010) (emphasis added). Reginald Fowler did not mention
our court‘s opinions in Wingard and Bobby Gene Keck or the supreme court‘s opinions
in Elkins and Jordan. Other than Timmy Reagan and Stephens, the only post-Rule 615
case cited on the issue of sequestering a witness, was Bane, which dealt with subsection
three (3) of the rule.

Based on Jordan, we conclude that Rule 615, as amended in 1997, supplanted the
condition from Mothershed and Smartt that the prosecutor should be required to testify
first or be sequestered. Thus, in this case, the trial court did not err in denying
Defendant‘s motion to exclude Detective Bachman. Although Jordan did not mention
Timmy Reagan, Timothy Wright, or Stephens, we further conclude that any opinions
issued by our court after 1997 stating that Mothershed was not affected by Rule 615 or
that the State‘s designated representative is required to testify before other witnesses were
abrogated by Jordan. The trial court, however, has broad discretion to decide if and when
a witness immune from sequestration should be sequestered and, if a witness violated the
rule of sequestration, the sanctions that should be imposed. Jordan, 325 S.W.3d at 39-44.

- 31 -
 Exclusion of Proffer by Amber Peveler

Defendant argues that the trial court erred by excluding a proffer made by Amber
Peveler during the pendency of the case. He contends that by excluding the proffer, the
trial court prevented him from presenting a defense. We disagree.

Defendant argues that the proffer was admissible pursuant to Rule 616 of the
Tennessee Rules of Evidence which provides: ―A party may offer evidence by cross-
examination, extrinsic evidence, or both, that a witness is biased in favor of or prejudiced
against a party or another witness.‖

Defendant argues that Ms. Peveler was ―coached‖ by her attorney during the
proffer, and as a result, she received favorable treatment by the State. As pointed out by
the State in its brief, Defendant fails to cite to the record in support of his claim. He
further fails to explain how the proffer showed that Ms. Peveler was biased or prejudiced
against Defendant. Again, Tennessee Rule of Appellate Procedure 27(a)(7) provides that
a brief shall contain ―[an] argument . . . setting forth the contentions of the appellant with
respect to the issues presented, and the reasons therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities and appropriate
references to the record . . . relied on [.]‖ Tennessee Court of Criminal Appeals Rule
10(b) states that ―[i]ssues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.‖

In any event, at trial Ms. Peveler testified concerning her relationship with
Defendant and the circumstances surrounding the death of the victim. After the jury was
excused for a lunch break, trial counsel stated: ―I‘ll just let you know I‘m planning on
playing the proffer which is about an hour.‖ The following exchange then took place:

[Prosecutor]: Your Honor, I don‘t believe it‘s admissible. If you
look at 803.26 [sic], it says it had to be a prior inconsistent statement. I‘d
like to know what about that statement [trial counsel] thinks is inconsistent.

THE COURT: Hold on. This is a new law. Go ahead, [trial counsel].

- 32 -
 [Trial Counsel]: Judge, A: it goes to coaching; it goes to her
appearance; it goes to her demeanor; it goes to how she perceived this.
This jury should see how she was coached up and how this whole thing is
about credibility. We‘ve got one statement on 10/30, and then we‘ve got
January of 2012.

. . .

THE COURT: Ladies and gentlemen, we‘re going to take up some
arguments here. Everybody else can be excused.

Okay. It‘s kind of old law and new law, but looking at the new law,
803.26, an exception to the hearsay rule that allows prior inconsistent
statements as substantive evidence as opposed to impeaching evidence, I
can‘t help but notice there that it refers back to 613(b), a statement
otherwise admissible under Rule 613(b) if all the following conditions are
satisfied. So you go back to 613(b).

[Trial counsel], if she admits to making the statements, then how can we
get into the substance of the statements and play the statements under Rule
613?

[Trial Counsel]: Judge, it is for impeachment. I might have
misspoke as far as substantive evidence. It is impeachment.

The Court has instructed the jury on how to view the credibility of
the witnesses. And under the special jury instruction 42.04(a) the jury
ought to have a contrast of how she testified today versus how she gave a
proffer a year ago, whether it appeared scripted, whether it appeared
coached. That is one of the things that is under part 2 ―did the witness have
a good memory.‖

I think on the - - I can‘t remember exactly the proffer - - I watched it
over the weekend - - whether she talked about the phone call. Today she
denied about the phone call or didn‘t have any recollection of it.

THE COURT: She didn‘t remember.
- 33 -
 [Trial Counsel]: She didn‘t remember. We‘ve also got how did
she look and act in the testimony. We‘ve got a contrast of how she looked
and acted under that, about how she‘s looking to be honest. This is a
question of whether the jury could be the fact finder or not.

Then we‘ve got this - - any evidence presented regarding the
witness‘ intelligence, respectability or reputation. [The prosecutor] asked
her, ―Did you do it, did you do it, did you do it?‖ And now we‘ve got - -
this is in contrast to that. Does the witness have any bias, prejudice or
personal interest in how the case is decided? Yes, she does. And that
statement is admissible under that to show that she does have bias, she does
have interest. She was being charged.

THE COURT: Well, is the statement that she made at the
proffer essentially the same thing that she said today?

[The Prosecutor]: It‘s - - in the important - - in the key details as
to who had the baby and when, yes. Where did she go, yes. As far as - - I
mean, it‘s been a year and a half. There are going to be some differences.

[Trial Counsel]: There we go.

[The Prosecutor]: But they‘re not - - as far as what the actual
statement was that ―I came to [Defendant‘s] apartment, I went to go buy
drugs from Marlon, I left [the victim] with [Defendant] and I came back
and she was nonresponsive,‖ going to the hospital and everything else is
pretty much the same.

It‘s not a prior inconsistent statement, Your Honor. Everything that
[trial counsel] talked about he can do on cross-examination. That‘s the
proper avenue for doing that. If she denies it on cross-examination, then he
can prove it through extrinsic evidence like we have in the rule. That‘s
what the rules are for. It‘s not a prior inconsistent statement.

- 34 -
 THE COURT: You know, I‘m always a little bit leery of
attorneys coming in and playing the whole prior statement on the record in
front of a jury without an evidentiary basis.

Now, like I stated, [trial counsel], if there is an inconsistent
statement and she doesn‘t admit to it, then it‘s okay to be played. If you
ask her if she was coached or other things and she denied it or if it‘s very
clear that she does not admit the truth of how the thing came about, then I
think under that circumstance it would be permissible, but to come in and
blanketly play the whole thing without something to make these rules
effective, I don‘t think I can do that now. I tell you one thing I can do. I
mean, I can listen to this tape during recess.

The State then informed the trial court that the entire proffer was four to six hours
long. Trial counsel noted that the portion of the tape that Defendant wanted to play was
approximately one hour and ten minutes. When asked what Defendant wanted to bring
out in the proffer, trial counsel responded:

Judge, it‘s not what I can bring out. It‘s what - - you know, show
and tell beats tell. When you look at that videotape or anybody looks at
that videotape, it‘s obvious that the whole thing was well planned and that
is the crux of the case.

. . .

Well, it was suggestive. I think that it was - - Mr. Warlick‘s a fine
attorney. He‘s representing his client. I think it was done in such a way to
present his client in the most favorable light possible to the prosecutors who
then made a decision not to charge her with whatever she was going to be
charged with.

The prosecutor noted that Ms. Peveler was charged with a Class A felony. The
trial court viewed a portion (forty-five minutes) of the proffer during the recess and asked
trial counsel the evidentiary basis for it to be played to the jury. Trial counsel then
responded that it was for impeachment. Trial counsel stated:

- 35 -
 The evidentiary vehicle, Judge, is we have a right to, under the rules
cited, under 613, we have - - I don‘t want to cite the rule off the top of my
head and get it wrong, Judge. Under 616, ―evidence by cross-examination,
extrinsic evidence, or both, that a witness is biased in favor of or prejudiced
against a party or another witness, ―so it goes to that video that is - - can be
impeachment by bias or prejudice. And the rule allows me to use extrinsic
evidence, which is the videotape of that.

In denying Defendant‘s request to play the proffer, the trial court made the
following findings:

Okay. This is an interesting issue. Again, I‘ve had an opportunity to
listen to about 45 - - 40 or 45 minutes. If it comes in, it should come in
under Rule 616 and 803.26.

Now, 803.26 comes in, it‘s got to come in under Rule 613(b). And
under Rule 613(b), it‘s clear: ―Extrinsic evidence of a prior inconsistent
statement by a witness is not admissible unless and until the witness is
afforded an opportunity to explain or deny the same and that the opposite
party is afforded an opportunity to interrogate the witness thereon.‖

Well, this is a proffer. And a proffer is when an attorney offers
testimony of a client to the law enforcement or district attorney‘s office or
the prosecutor to assist in an investigation, possibly to assist in favorable
treatment for the client.

Now I have no problem under the setup here, the fact that Mr.
Warlick questioned his client. He knew what the subject matter was more
than the district attorney did at this particular point. He had a rapport with
Defendant - - or Ms. Peveler, and in some occasions he went into more
detail - - they went into more detail on matters then we heard here in court.
And there was no undue influence or pressure or undue leading.

If there was any coaching, it was only coaching to tell the truth. And
one occasion he reminded her that‘s rule number one and what‘s rule
number two and rule number three. Rule number one was to tell the truth;
rule number two was to listen to the questions; and rule number three was
to tell the truth. And on another occasion she said, ―Say that again.‖ And
- 36 -
he said, ―Good. That‘s what I told you to do. If you don‘t understand, I
want you to say that.‖

A couple of times she would go, ―um-hmm,‖ not answer questions,
and he would remind her that, you know, this can be a transcription too,
although we‘re recording, and that doesn‘t transcribe very well. You need
to make a response.

On probably the most glaring example that I could see, he jumped in
- - after she said something to the effect, like, I don‘t know,‖ he said,
―That‘s the right answer. If you don‘t know, say so, I don‘t want you
guessing.‖

There‘s nothing in there that gives any indication of undue influence,
undue coaching, other than to tell the absolute truth.

Again, it goes into more detail, the 45 minutes that I saw, than
anything that we heard today and it appears to me that a lot of that is
rehashing exactly the same thing that we‘ve gone over in more detail.

If there are any inconsistent statements in there, and I‘m sure there
are - - on one occasion he cleared that up on down the line about the person
that - - Marlon, he said, ―You didn‘t know who you got the pills from,‖ and
cleared that up with her. And she said, ―The person I knew to get pills
from.‖ And he reminded her about Marlon. And after she mentioned that
that was inconsistent, it was just a matter to kind of cut through the
statement and get to the true subject matter.

Therefore, my ruling is based on 803.26 and 613(b). 616, I don‘t see
it‘s admissible here to show bias or prejudice because I really don‘t know if
it shows bias or prejudice. It‘s pretty consistent except for those points, and
those things can be brought out on cross-examination. And if those matters
are denied, then we can play them on the screen.

Therefore my ruling, [trial counsel] will be to follow Rule 803.26
and 613(b). If she denied particular questions, you have wide latitude here
for cross-examination. There‘s so much that you can cross-examine her on

- 37 -
 up to this point, even from this tape, that you could do without playing and
even setting the stage for Rule 613.

So my ruling will be that the entire video will not be played unless
it‘s brought out with the proper questions from 803.26 and 613(b). So let‘s
bring them in.

In the video recording of the proffer, Ms. Peveler answers questions asked by her
attorney, Mr. Warlick. In response to a detailed line of questioning, Ms. Peveler
explained the events leading up to and following the victim‘s death. She was asked about
her relationship with Defendant and how he treated his own children. Ms. Peveler denied
ever seeing Defendant mistreat his children. She also denied any knowledge of
Defendant‘s prior criminal record.

In the proffer, Ms. Peveler said that she had seen Defendant inject Dilaudid on
occasions in her presence but he did not use drugs in front of her children. Ms. Peveler
testified about the specific events of October 29, 2010, which was similar to her
testimony at trial. Ms. Peveler admitted that she initially lied to police by telling them
that the victim was never left alone with Defendant. She said that Defendant told her to
say that she never left the victim alone with him because he knew that he could lose his
children and go to jail. Ms. Peveler eventually told police and her husband, Chad
Peveler, what she said actually happened.

We agree with the State that the substance of the proffer by Ms. Peveler is hearsay
under Rule 801 of the Tennessee Rules of Evidence. We find that the video recording of
Ms. Peveler‘s proffer does not support Defendant‘s allegation of bias or prejudice. Also,
Defendant does not show in his brief how the proffer shows bias or prejudice. We also
note that the trial court did not preclude Defendant from using the proffer during Ms.
Peveler‘s cross-examination to establish a prior inconsistent statement. Therefore, this
issue is without merit.

Sufficiency of the Evidence

Defendant contends that the evidence was insufficient to support his convictions
for reckless homicide and aggravated assault. More specifically, he asserts that the proof
shows that the victim was injured by someone else and that the jury‘s verdicts were
inconsistent. We disagree.

- 38 -
 When an accused challenges the sufficiency of the convicting evidence, our
standard of review is whether, after reviewing the evidence in a 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, 99 S. Ct. 2781,
2789, 61 L.Ed.2d 560 (1979). The trier of fact, not this court, resolves questions
concerning the credibility of the witnesses, and the weight and value to be given the
evidence as well as all factual issues raised by the evidence. State v. Tuttle, 914 S.W.2d
926, 932 (Tenn. Crim. App. 1995). Nor may this court reweigh or re-evaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is
entitled to the strongest legitimate view of the evidence and all inferences therefrom. Id.
Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the
evidence is insufficient to support the verdict returned by the trier of fact. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). ―[D]irect and circumstantial evidence should
be treated the same when weighing the sufficiency of [the] evidence.‖ State v. Dorantes,
331 S.W.3d 370, 381 (Tenn. 2011).

Reckless homicide is statutorily defined as ―a reckless killing of another.‖ Tenn.
Code Ann. § 39-13-215(a) (2010). As instructed in this case, a person commits
aggravated assault who:

(1) Intentionally or knowingly commits an assault as defined in § 39-13-
101 and:

(A) Causes serious bodily injury to another; or

. . .

(2) Recklessly commits an assault as defined in § 39-13-101(a)(1), and:

(A) Causes serious bodily injury to another[.]

Tenn. Code Ann. § 39-13-102(a)(1)(A)-(2)(A) (2010). A person commits assault who
intentionally, knowingly or recklessly causes bodily injury to another. Tenn. Code Ann.
§ 39-13-101(a)(1) (2010).

Jury Verdict on Aggravated Assault
- 39 -
 Before addressing the question of the sufficiency of the evidence, we must first
address an issue with regard to Defendant‘s conviction for aggravated assault. As
recognized by the State, the trial court‘s instruction on aggravated assault as a lesser
included offense of aggravated child abuse included the elements of both intentional 2 or
knowing aggravated assault under Tennessee Code Annotated section 39-13-102(a)(1)(A)
and reckless aggravated assault under section 39-13-102(a)(1)(B). Although the jury
found Defendant guilty of the lesser included offense of aggravated assault, the jury‘s
verdict did not distinguish by which mens rea the offense was committed. The verdict
form did not differentiate between Class C felony aggravated assault (intentional or
knowing) and Class D felony aggravated assault (reckless), and the announcement of the
jury‘s verdict by the jury foreman did not indicate which mens rea it found applicable.
Following sentencing, however, the trial court entered a judgment reflecting a conviction
for intentional or knowing aggravated assault, a Class C felony, and imposed a six-year
sentence for that offense.

A defendant has a constitutional right ―to a unanimous verdict before a conviction
of a criminal offense may be imposed.‖ State v. Lemacks, 996 S.W.2d 166, 170 (Tenn.
1999). Because the jury‘s verdict did not reflect the mens rea with which it found
Defendant acted, it is unclear whether the jury unanimously found that the Defendant
either intentionally or knowingly assaulted the victim causing serious bodily injury. The
State concedes that, because of this deficiency in the jury‘s verdict, the Defendant‘s
judgment of conviction for Class C felony aggravated assault cannot stand, and we agree.

Both the State and Defendant assert that the appropriate remedy is for this court to
modify the judgment to reflect a conviction for Class D felony reckless aggravated
assault, rather than remand the case for a new trial. In this case, the jury was correctly
instructed as to the meaning of intentionally, knowingly, and recklessly and was further
instructed that ―[t]he requirement of ‗recklessly‘ is also established if it is shown that
Defendant acted intentionally or knowingly.‖ See Tenn. Code Ann. § 39-11-301(a)(2)
(2013). ―Reckless‖ is a lesser included mental state of ―knowing,‖ State v. Gilliam, 901
S.W.2d 385, 390-91 (Tenn. Crim. App. 1995), and it is well established that ―Class D
felony reckless aggravated assault is a lesser included offense of . . . Class C felony
intentional or knowing aggravated assault.‖ State v. Nathaniel Shelbourne, No. W2011-

2
We note that intentional aggravated assault was not a proper lesser included offense of
aggravated child abuse under the controlling case law at the time of trial and should not have been
charged to the jury. See State v. Honeycutt, 54 S.W.3d 762 (Tenn. 2001).

- 40 -
02372-CCA-R3-CD, 2012 WL 6726520, at *5 (Tenn. Crim. App. Dec. 26, 2012), no
perm. app. filed (citing State v. Raul T. Garcia, No. E2000-02817-CCA-R3-CD, 2001
WL 856598, at *2 (Tenn. Crim. App. July 31, 2001)). Because the mens rea of
―reckless‖ is a lesser mens rea of intentional or knowing, we conclude that the jury was
unanimous in finding, at a minimum, that Defendant was guilty of reckless aggravated
assault.

Initially, we were reluctant to simply modify Count 2 to reflect a conviction for
reckless aggravated assault because there was sufficient evidence presented to the jury to
support a conviction for a Class C felony, knowing aggravated assault. However, on rare
occasion, our court has modified a conviction even when that conviction was supported
by sufficient evidence. In State v. Holland, our court stated:

We, therefore, find ample evidence to support the jury finding of
each of the elements of especially aggravated burglary. However, although
neither side has raised the issue, we are compelled by statute to modify the
especially aggravated burglary conviction[3] to one of aggravated burglary.
Tennessee Code Annotated Section 39-14-404(d) provides that ―[a]cts
which constitute an offense under this section may be prosecuted under this
section or any other applicable section, but not both.‖ Tenn. Code Ann. §
39-14-404(d) (1991 Repl.) [] Subsection (d) prohibits using the same act to
prosecute for especially aggravated burglary and another offense. By virtue
of the prosecution and conviction of Holland for aggravated rape, the
statute prohibits his prosecution and conviction for especially aggravated
burglary. See State v. [] Oller, 851 S.W.2d 841 (Tenn. Crim. App. 1992).

Accordingly, Holland‘s conviction for especially aggravated
burglary is modified to a conviction for aggravated burglary, a class C
felony. Tenn. Code Ann. § 39-14-403 (1991 Repl.). Because we have
sustained the trial judge‘s findings regarding sentencing, we impose a ten
year sentence and modify the fine to the maximum under the class,
$10,000. Tenn. Code Ann. §§ 40-35-111(b)(3) & -112(b)(3) (1990 Repl.).
Our sua sponte modification of the conviction, sentence, and fine is
necessary, we believe, to do substantial justice in this case. [(Citations
omitted)].

3
Tennessee Code Annotated section 39-14-404(d) provides a prohibition against certain
prosecution but did not, on its face, compel the modification made in Holland. See Tenn. Code Ann. §
39-14-404(d).
- 41 -
State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

Tennessee Rule of Appellate Procedure 36(b) provides, in part, that ―[w]hen
necessary to do substantial justice, an appellate court may consider an error that has
affected the substantial rights of a party at any time, even though the error was not raised
in the motion for a new trial or assigned as error on appeal.‖ Tenn. R. App. P. 36(b).
Although in Holland, our court based the modification on a statutory prohibition as
opposed to an error in the verdict form, we now determine that Holland provides
authority for this court to modify convictions, even convictions supported by sufficient
evidence, to do substantial justice. In this case, the jury verdict was not sufficiently clear
to support the conviction imposed by the trial court. Although it is not possible to
determine if all of the jury agreed that Defendant knowingly assaulted the victim causing
serious bodily injury, we can determine that, at a minimum, the jury found that Defendant
recklessly assaulted the victim causing serious bodily because the jury determined that
Defendant was guilty of aggravated assault. Also, as we discuss below, there was
sufficient evidence to support a conviction for reckless aggravated assault. The fact that
both the State and Defendant argued for modification of the conviction to reckless
aggravated assault, although not controlling, is persuasive. These facts indicate to us that
the rights of Defendant and the interest of the public would be protected by imposition of
a conviction for reckless aggravated assault in Count 2. Therefore, in order to do
substantial justice, we modify Defendant‘s conviction in Count 2 to reckless aggravated
assault, a Class D felony. See Tenn. R. App. P. 36(b). On appeal, Defendant did not
claim that the trial court erred in sentencing Defendant to six years‘ incarceration, the
maximum sentence for a Range I standard offender convicted of Class C felony
aggravated assault. Consequently, and as the court did in Holland, we sua sponte modify
Defendant‘s sentence in Count 2 to four years‘ incarceration. See Holland, 860 S.W.2d
at 60.

Evidence Supporting Convictions for Reckless Homicide
and Reckless Aggravated Assault

When viewed in the light most favorable to the State, we conclude that the
evidence is sufficient to support Defendant‘s convictions for reckless homicide and
reckless aggravated assault. The jury obviously accredited the testimony of Amber
Peveler, who testified that she left the nine-month-old victim with Defendant while she
went to purchase narcotics for Defendant on October 29, 2010. The victim was awake
when Defendant took her into his apartment still strapped inside of her infant carrier, and

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Ms. Peveler was talking to her. Cell phone records supported Ms. Peveler‘s account that
she drove to Walmart in Hendersonville. There she met Marlon Thompson and
purchased six Dilaudid pills. When Mr. Thompson asked about the victim, Ms. Peveler
told him that the victim was with Defendant.

Ms. Peveler arrived back at Defendant‘s apartment, and Defendant walked outside
to meet her. When Ms. Peveler walked inside the apartment, she saw the victim asleep in
her infant carrier. She then asked Defendant to lay the victim down in the back bedroom
while she cooked. Defendant later received a phone call and announced that they needed
to ―meet a guy to buy the pills.‖ Ms. Peveler walked into the back bedroom to get the
victim and immediately noticed that ―something wasn‘t right.‖ She noted that the victim
was lying at an angle on her back in the bed. Defendant had placed a pillow on the right
side of the victim, and there was a pillow over her head. Ms. Peveler found it strange that
the victim was covered with a blanket up to her chest but her arms were outside of the
blanket down to her side. Ms. Peveler tried to wake the victim, but the victim was
unresponsive. She opened the victim‘s eyelids and noticed that her pupils were
extremely dilated. Ms. Peveler carried the victim into the hallway and told Defendant
that something was wrong with the victim. Defendant indicated that he thought Ms.
Peveler was joking. He then looked at the victim and walked into the kitchen to get a cup
of water. He sprinkled some water in the victim‘s face, but she did not move. Defendant
began performing CPR on the victim, and Ms. Peveler suggested that they call for an
ambulance. However, Defendant said that they would drive the victim to the hospital in
Hendersonville. Colby Carroll, a nurse a Hendersonville Medical Center, testified that
when the victim was first brought into the emergency room, Defendant came running
through the door while she and Dr. Harrison were treating the victim and began yelling
and cursing. Ms. Carroll said that Defendant was ―just very, very aggressive.‖ She also
noted that Defendant never looked at the victim. Dr. Harrison asked that Defendant be
removed from the room.

While Ms. Peveler and Defendant were at the hospital, Defendant suggested that
they tell everyone that Ms. Peveler had the victim the entire time and that she never left
the victim with Defendant. He wanted Ms. Peveler to say that they were going to get
pizza when Ms. Peveler found the victim unresponsive. Defendant also wanted Ms.
Peveler to say that she put the victim down for a nap. A CT scan was performed on the
victim, and it was determined that she was bleeding from the left side of her brain and
that she was having seizures. The victim was then taken by LifeFlight to Vanderbilt
Children‘s Hospital. The victim was pronounced brain dead after arriving at Vanderbilt.

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 Dr. Fleming testified that the victim had a subdural hematoma or blood clot on her
brain caused by trauma. She evaluated the victim who had been declared brain dead. It
was Dr. Fleming‘s opinion that the victim suffered ―abusive head trauma‖ and that the
―most likely mechanism for all of these things [was] some combination of shaking or
impact of her head against a hard surface.‖ Dr. Fleming also noted that the victim had
bruises on her face, buttocks, vaginal area, chest, inner thigh, and her knee. Dr. Fleming
testified that the victim had retinal hemorrhages, and part of the retina was ―torn off the
back of the inside of the eye, and that is almost never seen in anything other than abusive
head trauma.‖ It was Dr. Fleming‘s opinion that the victim would not have been ―acting
normally‖ after her injuries happened. She also opined that the victim‘s injuries occurred
within the day, probably within 12 to 18 hours at the most prior to the time that she
showed up in the hospital.‖ Dr. Fleming testified that she had seen injuries similar to the
victim‘s from a horrific car accident or a fall from a second or third story building.

Dr. Bridget Eutenier, who performed an autopsy on the victim testified that the
cause of the victim‘s death was blunt force injuries to the victim‘s head. There were
three contusions to the victim‘s head that were indicative of ―some force applied, some
impact‖ of the victim‘s head, and there was evidence of blunt force injury to the victim‘s
torso. Dr. Eutenier estimated that the victim‘s injuries occurred two to three days prior to
the victim‘s ―metabolic death,‖ when her organs were harvested. Therefore, the injuries
would have occurred on October 29 or 30, 2010. Dr. Eutenier testified that the victim‘s
injuries were consistent with a fall from a third floor window and that the victim would
not have acted normally after the injuries occurred. In addition to the blunt force injuries,
Dr. Eutenier could not rule out ―acceleration-deceleration injuries.‖

Marlon Thompson affirmed that he met Ms. Peveler on the afternoon of October
29, 2010, at the Hendersonville Walmart to sell her some Diluadid pills. He said that
L.P. was with Ms. Peveler but he did not see the victim.

Defendant contends that because the victim had older bruises on her jaw and
buttocks that occurred before her death, her fatal injuries were ―inflicted by someone
else, likely the co-defendant/mother, Amber Peveler, prior to Ms. Peveler‘s short absence
from the residence.‖ Although the evidence showed that the victim had bruising prior to
her death, Dr. Eutenier‘s testimony was clear the victim died from blunt force injuries to
her head that would have occurred on October 29, 2010. She also testified that the victim
would not have acted normally after sustaining the injuries. Therefore the evidence is
sufficient to support convictions for reckless homicide and reckless aggravated assault.

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 Defendant also asserts that the jury verdicts in this case are inconsistent. He
makes the following argument:

In Count I, reckless homicide, the jury found [Defendant] acted with
the mental state of reckless. In Count II – aggravated assault, the
prerequisite mental state for aggravated assault is intentional or knowingly.
The jury verdict is inconsistent in that it returned a verdict with two
different mental elements. Both crimes happened at the same time.
[Defendant] asserts that there was no evidence to support a conviction on
either count but especially Count II.

Defendant cites no authority in support of this argument. Tennessee Rule of
Appellate Procedure 27(a)(7) provides that a brief shall contain ―[an] argument . . .
setting forth the contentions of the appellant with respect to the issues presented, and the
reasons therefor, including the reasons why the contentions require appellate relief, with
citations to the authorities and appropriate references to the record . . . relied on [.]‖
Tennessee Court of Criminal Appeals Rule 10(b) states that ―[i]ssues which are not
supported by argument, citation to authorities, or appropriate references to the record will
be treated as waived in this court.‖ See also State v. Sanders, 842 S.W.2d 257 (Tenn.
Crim. App. 1992) (determining that issue was waived where defendant cited no authority
to support his complaint).

In any event, this issue is without merit. Inconsistent jury verdicts are not a basis
for relief. State v. Davis, 466 S.W.3d 49, 76 (Tenn. 2015); see, e.g., State v. Watkins,
362 S.W.3d 530, 558 (Tenn. 2012) (affirming Defendant‘s convictions for reckless
homicide and aggravated child abuse which were based upon differing mental states
(―reckless‖ v. ―knowing‖)). Defendant is not entitled to relief on this issue.

Double Jeopardy and Merger

Defendant argues that principles of double jeopardy require the trial court to
merge his sentences for reckless homicide and aggravated assault because the ―two
convictions arose out of the same event and were, thus, a single criminal offense.‖

Blockburger Analysis

The double jeopardy clauses of the United States and Tennessee Constitutions
protect an accused from (1) a second prosecution following an acquittal; (2) a second
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prosecution following conviction; and (3) multiple punishments for the same offense.
See State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012). The present case involves the
third category. When a defendant complains that prosecution inflicts multiple
punishments for the same offense, then a court must employ the Blockburger analysis.
Id. at 556 (adopting the standard announced in Blockburger v. United States, 284 U.S.
299, 304 (1932)).

Pursuant to the Blockburger test, the threshold inquiry is whether the defendant‘s
convictions arose from the same act or transgression. Id. at 545. If the convictions do
not arise from the same act or transgression, the state and federal prohibitions against
double jeopardy are not implicated, and the inquiry ends. Id. If, however, the
convictions arose from the same act or transgression, the court must then determine
whether the legislature intended to allow the offenses to be punished separately. Id. at
556. When the legislature has not clearly expressed its intent either to prevent or to
preclude the dual convictions, the court must examine the statutes to determine whether
the crimes constitute the same offense. Id. at 557. ―The court makes this determination
by examining statutory elements of the offenses in the abstract, rather than the particular
facts of the case.‖ State v. Cross, 362 S.W.3d 512, 519 (Tenn. 2012). ―[I]f each offense
includes an element that the other does not, the statutes do not define the ‗same offense‘
for double jeopardy purposes,‖ and courts ―will presume that the Legislature intended to
permit multiple punishments.‖ Watkins, 362 S.W.3d at 557.

Pursuant to Watkins, we have examined the charging instrument and the relevant
statutes, and we have considered whether the charges arise from a single act or
transgression. See id. at 545. The record shows that the crimes occurred on the same day
and in the same location. The two offenses at issue, reckless homicide and reckless
aggravated assault, clearly arose from the same conduct. Therefore, Defendant‘s double
jeopardy claim survives our threshold inquiry. ―If the convictions do arise from the same
transaction, the question becomes whether each offense includes an element the other
does not—if so, there is a presumption that the General Assembly intended to permit
multiple punishments; if not, the presumption is that multiple punishments are not
permitted.‖ State v. Feaster, 466 S.W.3d 80, 84 (Tenn. 2015) (citing Watkins, 362
S.W.3d at 557).

Under Tennessee Code Annotated section 39-13-215(a), reckless homicide is ―a
reckless killing of another.‖ Tenn. Code Ann. § 39-13-215(a) (2010). As relevant here,
―[a] person commits aggravated assault who . . . [r]ecklessly commits an assault as

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defined in § 39-13-101(a)(1), and . . . [c]auses serious bodily injury to another[.]‖ Tenn.
Code Ann. § 39-13-102(a)(2)(A) (2010).4 At the time of the offense, ―serious bodily
injury‖ was defined as including a ―substantial risk of death,‖ ―[p]rotracted
unconsciousness,‖ ―[e]xtreme physical pain,‖ ―[p]rotracted or obvious disfigurement,‖
―[p]rotracted loss or substantial impairment of a function of a bodily member, organ or
mental faculty,‖ or ―[a] broken bone of a child who is eight (8) years of age or less.‖
Tenn. Code Ann. § 39-11-106(a)(34) (2010).

In addressing the double jeopardy issue at sentencing, the trial court in this case
noted, ―The elements are different. One is killing; the other is an assault.‖ We
acknowledge a split of authority within our court on the issue of whether the element of
―killing‖ necessarily includes the element of serious bodily injury. In State v. John C.
Walker, III, this court determined that ―the unlawful killing of a person is a crime
distinctly different from that of an assault upon a person.‖ John C. Walker, III, No.
M2005-01432-CCA-RM-CD, 2005 WL 1798758, at *11 (Tenn. Crim. App. July 28,
2005), perm. app. denied (Tenn. Dec. 19, 2005) (applying the test identified in Tenn.
Code Ann. § 40-18-110(f)(1) to conclude that aggravated assault is not a lesser included
offense of first degree murder); see also State v. William Matthew Black, No. M2013-
00612-CCA-R3-CD, 2014 WL 1669965, at *13 (Tenn. Crim. App. Apr. 25, 2014), perm.
app. denied (Tenn. Sept. 22, 2014) (citing John C. Walker, III in its conclusion that the
trial court did not commit plain error in refusing to instruct aggravated assault as a lesser
included offense of first degree murder). Conversely, this court determined in State v.
Paul Graham Manning that ―[a] killing certainly includes serious bodily injury (as well as
‗mere‘ bodily injury)‖ and, therefore, aggravated assault and assault are lesser included
offenses of first degree murder. Paul Graham Manning, No. M2002-00547-CCA-R3-CD,
2003 WL 354510, at *6 (Tenn. Crim. App. Feb. 14, 2014), perm. app. denied (Tenn. Dec.
15, 2003); see also State v. Alexis Mason, No. W2010-02321-CCA-R3-CD, 2013 WL
1229447, at *19-20 (Tenn. Crim. App. Mar. 27, 2013), perm. app. denied (Tenn. Sept.
16, 2013) (concluding that reckless aggravated assault was a lesser included offense of
facilitation of first degree premeditated murder based upon Paul Graham Manning).

We agree with the conclusion reached by the court in John C. Walker, III that ―the
unlawful killing of a person is a crime distinctly different from that of an assault upon a

4
We note that ―Boomer‘s Law,‖ which became effective on July 1, 2013, (after the date of the
offenses in this case) added ―death‖ as one of the results of an intentional, knowing, or reckless assault
that can elevate the offense to aggravated assault. See 2013 Tenn. Pub. Acts, c. 461, § 1.

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person.‖ See also United States v. Good Bird, 197 F.3d 1203, 1205 (8th Cir. 1999)
(―[A]lthough ‗serious bodily injury‘ is an element of assault . . . it is not an element of
murder . . . and . . . ‗assault resulting in serious bodily injury and second degree murder
are completely separate offenses[.]‘‖). Accordingly, we hold that reckless aggravated
assault contains an element (serious bodily injury) not contained in the reckless homicide
statute and that reckless homicide contains an element (killing) not required for a
conviction for reckless aggravated assault. Therefore, Defendant‘s convictions for both
reckless homicide and reckless aggravated assault can stand under the Blockburger
double jeopardy analysis.

Burns Part (b) and Reconsideration in Light of Glen Howard

Although we have concluded that separate convictions for reckless homicide and
reckless aggravated assault do not violate double jeopardy under the Blockburger
elements test, we note that, if one offense is a lesser[-]included of the other, there is a
presumption that multiple convictions were not intended by the General Assembly and
that multiple convictions violate double jeopardy. Watkins, 362 S.W.3d at 557. Upon
our initial consideration of this issue, we noted that because all of the statutory elements
of reckless aggravated assault were not included within the statutory elements of reckless
homicide, reckless aggravated assault was not a lesser[-]included offense under
Tennessee Code Annotated section 40-18-110(f). However, we noted that if we applied
the test from State v. Burns, 6 S.W.3d 453 (Tenn. 1999)5 we would be constrained to

5
Pursuant to Burns, an offense is a lesser-included offense if:

(a) all of its statutory elements are included within the statutory elements of the
offense charged; or

(b) it fails to meet the definition in part (a) only in the respect that it contains a
statutory element or elements establishing

(1) a different mental state indicating a lesser kind of culpability;
and/or

(2) a less serious harm or risk of harm to the same person,
property or public interest; or

(c) it consists of

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conclude, under Burns part (b), that reckless aggravated assault was a lesser[-]included
offense of reckless homicide because it contained a statutory element establishing a less
serious harm (serious bodily injury versus death) to the same person, Burns, 6 S.W.3d at
466, and thus, dual convictions would violate double jeopardy. See Watkins, 362 S.W.3d
at 557.

Based upon the reasoning in State v. John J. Ortega, Jr., No. M2014-01042-CCA-
R3-CD, 2015 WL 1870095, at *11 (Tenn. Crim. App. Apr. 23, 2015) and State v. Glen
B. Howard, No. E2014-01510-CCA-R3-CD, 2015 WL 4626860, at *15 (Tenn. Crim.
App. Aug. 4, 2015), wherein this court held that the 2009 amendment of Tennessee Code
Annotated section 40-18-110 abrogated part (b) of the Burns test, we concluded that
reckless aggravated assault was not a lesser[-]included offense of reckless homicide
under Tennessee Code Annotated section 40-18-110(f)(1) and that dual convictions were
proper. Following the release of our opinion in this case, the Tennessee Supreme Court
reversed in part Glen B. Howard and held that the 2009 amendments to Tennessee Code
Annotated section 40-18-110 did not abrogate part (b) of the Burns test. Howard, __
S.W.3d __, 2016 WL 5933430, at *1, 6. The supreme court then granted Defendant‘s
application for permission to appeal and remanded Defendant‘s case to this court for
reconsideration in light of the supreme court‘s opinion in Howard.

Upon reconsideration, we hold that reckless aggravated assault is a lesser[-]
included offense of reckless homicide under part (b) of the Burns test as reckless
aggravated assault fails to meet the definition of a lesser[-]included offense of reckless
homicide under Burns part (a) only in the respect that it contains a statutory element
establishing a less serious harm (serious bodily injury versus death) to the same person.

(1) facilitation of the offense charged or of an offense that
otherwise meets the definition of lesser-included offense in part
(a) or (b); or

(2) an attempt to commit the offense charged or an offense that
otherwise meets the definition of lesser-included offense in part
(a) or (b); or

(3) solicitation to commit the offense charged or an offense that
otherwise meets the definition of lesser-included offense in part
(a) or (b).

Burns, 3 S.W.3d at 466-67.
- 49 -
Burns, 3 S.W.3d at 466-67. Accordingly, Defendant‘s conviction for reckless aggravated
assault must merge into the conviction for reckless homicide. See Watkins, 362 S.W.3d
at 557.

Consecutive Sentencing

Defendant also argues that the trial court erred by ordering his sentences to be
served consecutively.

Appellate review of the length, range, or manner of service of a sentence imposed
by the trial court are to be reviewed under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). In
sentencing a defendant, the trial court shall consider the following factors: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-
35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the appellant
to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm‘n Cmts.

In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement
factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

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 Our supreme court has also extended the standard of review enunciated in State v.
Bise, abuse of discretion with a presumption of reasonableness, to consecutive sentencing
determinations. State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013). Tennessee Code
Annotated section 40-35-115 sets forth the factors that are relevant in determining
whether sentences should run concurrently or consecutively. The trial court may order
consecutive sentences if it finds by a preponderance of the evidence that one or more of
the seven statutory factors exist. Tenn. Code Ann. § 40-35-115(b). Imposition of
consecutive sentences must be ―justly deserved in relation to the seriousness of the
offense.‖ Tenn. Code Ann. § 40-35-102(1). The length of the resulting sentence must be
―no greater than that deserved for the offense committed.‖ Tenn. Code Ann. § 40-35-
103(2).

In Pollard, the court reiterated that ―[a]ny one of these grounds is a sufficient basis
for the imposition of consecutive sentences.‖ Pollard, 432 S.W.3d at 862. ―So long as a
trial court properly articulates its reasons for ordering consecutive sentences, thereby
providing a basis for meaningful appellate review, the sentences will be presumed
reasonable and, absent an abuse of discretion, upheld on appeal.‖ Id.; Bise, 380 S.W.3d
at 705.

In this case, the trial court found one statutory factor to support the imposition of
consecutive sentencing. The trial court found that Defendant is a dangerous offender
whose behavior indicates little or no regard for human life and no hesitation about
committing a crime in which the risk to human life is high. With regard to the court‘s
finding that Defendant was a ―dangerous offender,‖ the trial court further found that
consecutive sentences were reasonably related to the severity of the offenses committed
and were necessary to protect the public from further criminal conduct by Defendant, as
required by State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). We conclude that the trial
court did not abuse its discretion in imposing consecutive sentences. However, as
discussed above, Defendant‘s conviction for reckless aggravated assault must merge into
his conviction for reckless homicide, resulting in a total effective sentence of four years.

Conclusion

For the reasons stated herein, we affirm Defendant‘s conviction and sentence for
reckless homicide. We modify the judgment of conviction for aggravated assault in
Count 2 to reflect that the Defendant is convicted of reckless aggravated assault, a Class
D felony. Upon reconsideration of this case in light of Howard, Defendant‘s conviction
- 51 -
for reckless aggravated assault must merge into the conviction for reckless homicide
based on double jeopardy principles. The case is remanded to the trial court for entry of
amended judgments of conviction consistent with this opinion.

_________________________________
ROBERT L. HOLLOWAY, JR., JUDGE

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