State of Tennessee v. Natasha Moses Bates ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 9, 2014
STATE OF TENNESSEE v. NATASHA MOSES BATES
Appeal from the Criminal Court for Bradley County
No. 12-CR-276 Amy A. Reedy, Judge
No. E2014-00725-CCA-R3-CD - Filed April 7, 2015
The defendant, Natasha Moses Bates, was convicted of two counts of felony murder, two
counts of aggravated child neglect, and four counts of facilitation of the initiation of the
process of manufacturing methamphetamine. The murder charges resulted from the deaths
of her five- and three-year-old sons whose bodies were found in her front yard. She received
a life sentence for each of the felony murder convictions, a twenty-year sentence for each
of the aggravated child neglect convictions, and a three-year sentence for each of the drug-
related convictions. The trial court ordered that the two life sentences be served
consecutively and the two twenty-year sentences to be served consecutively as well, with
these two sets of sentences to be served concurrently with each other and with the drug
sentences. On appeal, the defendant argues that the evidence is insufficient to support the
convictions; that the court erred by not severing the drug-related offenses from the felony
murder and aggravated child neglect offenses; and that the court erred by ordering certain
of the sentences to be served consecutively. Following our review, we conclude that the trial
court erred in not severing the drug offenses, Counts 5-8, from Counts 1-4, alleging felony
murder and aggravated child neglect. Accordingly, we reverse the convictions for Counts
5-8 and remand for a new trial. We affirm the convictions and sentencing for Counts 1-4.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
in Part, Reversed and Remanded in Part
A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL, P.J.,
and T IMOTHY L. E ASTER, J., joined.
Richard Hughes, Jr., District Public Defender, for the appellant, Natasha Moses Bates.
Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; R. Steven Bebb, District Attorney General; and Stephen Hatchett,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
This matter resulted from the deaths of the defendant’s sons, R.B., age 3, and L.B.,
age 5, and the discovery of evidence of the manufacture of methamphetamine at the
defendant’s residence.
The State’s first witness was Nicholas Glen Laney, who was employed by the Bradley
County EMS and said that, on June 28, 2012, he responded to a call to the residence of
Thomas Kile, the defendant’s father. He found one of the victims on the sidewalk in front
of the home and the other inside the front door of the residence, both unresponsive. The
victims’ clothes were soaked apparently with sweat; and R.B. had “warm, . . . pale . . . [a]nd
moist” skin, with blue lips and nail beds. No pulse was detected for R.B., but L.B. was still
breathing and had a pulse.
Dr. Jeffrey Lynn Miller testified that he was an emergency room physician at the
SkyRidge Emergency Room and was the Bradley County Medical Examiner. He described
the condition of R.B. when he arrived at the hospital:
He was obtunded, he was unresponsive, you know, as where we are
working on the child, you know, we are starting IV’s and we are doing
procedures to the child to try and determine his . . . condition. There was no
response to anything we did. He was completely unresponsive.
Dr. Miller said that the standard temperature is 98.6 degrees, but R.B.’s was 109.
Dr. Miller did not believe that R.B.’s playing outside could have caused a temperature
as high as R.B. had. Carol Hayes Mayo testified that she was on duty at the emergency
department at Children’s Hospital at Erlanger when L.B. was brought in and that his core
temperature was 104 degrees.
Travis Smith testified that he was a patrol sergeant with the Bradley County Sheriff’s
Office and, on June 28, 2012, responded to a call regarding L.B. and R.B. He said that the
EMS technicians already were at the scene and working on the two victims. One was in an
ambulance, and the other was being brought out of the house. Initially, he thought it was a
drowning call, but the defendant said the incident had occurred on Keith Valley Road. She
said she had not called 911 from that location because she did not have a cell phone and had
to go to her father’s house.
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Charles Dewayne Scoggins testified that he was a criminal investigator for the Bradley
County Sheriff’s Office and responded to the call at 2:44 p.m. to 851 Armstrong Road and
immediately went from there to 879 Keith Valley Road, where the defendant was living. At
that location, he examined the Slip and Slide and explained its condition:
What I noticed initially when I got there the slide appeared to be
relatively dry with the exception of two very small puddles, all of which had
dirt and bugs in it. The ground around the Slip and Slide was dry, there was
no wet grass anywhere that I could find, and over all in general the Slip and
Slide did not appear to have been used in the recent past.
He first spoke with the defendant at the SkyRidge Medical Center Emergency Room,
and she said the victims had been outside, playing on the Slip and Slide and when she
returned from the house, they were in the front yard and unresponsive. Because of the
“suspicious circumstance” of the incident, he asked, and the defendant consented, to having
a blood sample taken from her while still at the emergency room. The defendant returned
with him to her residence, and later they went together to the Bradley County Sheriff’s
Office. She said that she had gone inside her home, while the victims remained outside in
the yard, and when she returned twenty to twenty-five minutes later, she found them. She
said that she had fixed the victims eggs for breakfast, but Investigator Scoggins found no
evidence that eggs had been cooked that morning. Later, she said that she had been inside
for thirty to forty-five minutes. He asked her the whereabouts of her cell phone, and she
responded she thought it was in her car, which was then in the possession of the sheriff’s
department. He said that he examined her cell phone and found that it would “ring straight
through to the Bradley County 911 Center.” The defendant did not explain why her phone
had been found in the trunk of her car.
When Investigator Scoggins told the defendant of the autopsy findings, she responded
that the information she had previously given was accurate, although it was possible that the
victims had been under the front porch instead of in the yard. Later, she said she had found
the victims in her car:
When we were getting close to being finished she did finally admit that she in
fact had come out and found both children inside of her car, describing her
younger child [R.B.] to be in the front right passenger seat of the vehicle with
that seat laid completely back, and that her old[er] son [L.B.] was partially
hanging out of the right rear passenger door.
Two search warrants were executed at the defendant’s residence. The first, on July
3, 2012, was to conduct a temperature study to determine the maximum temperature in the
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defendant’s car, where she said she had found the children. The next search warrant,
executed “approximately two weeks later,” was to search for the manufacture of
methamphetamine. Regarding the temperature experiment, Investigator Scoggins said that
the temperature on June 28, 2012, was 101 degrees, and on July 3, when they conducted the
experiment, it was less than that. The car was parked in the same location as on June 28, and
the purpose of the experiment was to measure the outside temperature and that at different
locations in the car, using seven or eight thermometers. Every thirty minutes, each
thermometer was read for the temperature shown and was photographed. The conditions on
the day of the test were the same as on June 28, except for the lower outside temperature.
At 1:00 p.m. on the day of the test, the ambient air temperature inside the car was 129
degrees.
Investigator Scoggins testified that the defendant told him she had a date with Mike
Mauradian the night of June 27 and was with him from 4:30 or 5:30 p.m. until about 10:00
p.m., when she left to go home. However, after officers asked to search her cell phone, she
recalled that later she had gone to the residence of Preston Woods. Describing the layout of
the interior of the defendant’s vehicle, he said that the back passenger door “was obstructed
based on the front seat being leaned back very far and two car seats piled up right behind it,
you couldn’t get between the seat and the car seats. It would have been hard to get through
there.” He said that, of the four doors of the vehicle, “the only door that opened from the
inside was the right rear which was blocked by the two car seats.”
Melanie Carlisle testified that she was employed by the Tennessee Bureau of
Investigation (“TBI”) as a special agent forensic scientist in the field of toxicology and blood
alcohol. She said that her testing of the defendant’s blood showed “amphetamine at less than
.05 micrograms per milliliter, and methamphetamine at less than .05 micrograms per
milliliter.” She said that, following a methamphetamine “high,” a user would reach a “crash
stage” and become depressed and sleepy.
Monica Datz testified that she was a crime scene investigator and latent print examiner
with the Bradley County Sheriff’s Office. She examined the defendant’s vehicle and
described the condition of the doors:
The front driver door, the exterior handle was broken but the door can
be opened from the exterior by putting my hand in the hole and searching for
and pulling, and I actually had to have one of our garage employees show me
how to do it. I couldn’t get the door open myself but I was able to pull on a
mechanism inside there and open the door. And the interior handle on the
driver door is broken, but it can be opened by pulling forward on a little piece
that was still there, and I had to pull forward to open that.
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As for the front passenger door, she said that ‘the exterior handle is missing, there’s
a hole in this area. I pulled on a bar in the hole and it locked and unlocked all the doors, but
the door would not open for me.” She added that the interior handle of the front passenger
door was broken off as well, and she could not open this door from the inside. The exterior
handle of the back driver door worked “properly,” but the interior handle was missing and
she could not open the door from the inside. She said that the defendant’s cell phone was in
the trunk of the vehicle.
Jan Null testified that he was a meteorologist in Saratoga, California, and since 2001,
he had been studying when outside temperatures were between 72 and 96 degrees. He
described the effect of the sun’s heating the interior of a vehicle:
A car basically acts as a greenhouse. The sun’s energy comes in what is short
wave energy, very high energy. It doesn’t heat up the air very much but heats
up objects inside a vehicle. It’s not uncommon for seats and dashboards to be
200 degrees. That in turn gives off heat that warms the air inside of a car, the
same sort of radiant heat you would have from that . . . little glowing heater
you have under your desk for those cold window [sic] mornings. That’s
heating up the car. Well, a car is a closed area and so that heat continues to
rise, and it actually heats up very rapidly. In the first 10 minutes a car heats up
about 19 degrees above whatever the outside air temperature. After a half an
hour it’s 34 degrees above whatever the outside air temperature is, and in an
hour it’s 40 degrees plus above whatever the outside air temperature is.
Mr. Null added that, at about one hour, the interior temperature of a vehicle reached
a plateau of about 45 degrees more than the outside temperature. He had reviewed
temperature records, and the June 28 temperature at the Cleveland water treatment plant was
101 degrees. He explained how the interior temperature of a car would rise as the outside
became warmer:
It would have heated up to, let’s say what that 85 degree temperature, during
that first hour it would have gotten to 125 or so, and then gradually as the day
warmed up, as the day warmed from that 85 to 101 the temperature inside the
car, again that plateau would have been reached and it would have stayed up
at that range.
Mr. Null said leaving the windows of a vehicle partly open made little difference of
the interior vehicle: “It mattered very little as far as windows being cracked. I have looked
at a number of days where they were cracked and it made a difference of about two or three
degrees on the extreme end of the temperatures.”
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Dr. Steven Cogswell testified that he was the deputy chief medical examiner at the
Regional Forensic Center in Knoxville. He described the effect on the human body as its
temperature rises:
Well, at a 109 degrees he will be comatose and probably die. Above a
108 we start seeing brain damage, irreversible brain damage. Above 104 we
start seeing reversible kind of changes, the ones that I’ve already gone over.
But when you get to about, roughly a 105 or 106 or so coma starts setting in
because you are simply unable to maintain conscientiousness [sic]. Your brain
is not getting enough blood. What blood it is getting doesn’t have much
oxygen, you are not moving it very well, and basically your body begins this
process of shutting down. Ultimately that leads to death. At a 109 degree core
temperature though you would be expected to be in [a] coma if not death [sic]
by that point.
Sandra Gail Keith, the first witness for the defense, testified that she was the
defendant’s mother. She said that her father owned the residence where the defendant was
living. Keith said she was employed as a truck driver and had lived in the residence herself
from 2007 until May 2012. The defendant and her husband were living there during the
same period. She said that the two victims liked to get into the defendant’s car and “pretend
like they were driving or they would just get toys and get out there and just play inside the
car.”
Tracy Lynn Honey testified that she was the defendant’s aunt. She went to the
hospital soon after the victims had arrived there and the defendant was “pretty frantic,
screaming, crying.” She accompanied the defendant back to her trailer to meet with
Investigator Scoggins. Later, they both went to the sheriff’s department.
Wanda Faye Ghorely testified that she was the defendant’s grandmother. She said
the victims liked to play in cars by themselves. She said that she sold the car to the defendant
and that the two front doors could be opened from the inside with a hook, which the victims
knew how to do, as well as to unhook their seatbelts. The rear doors opened and closed
normally.
Thomas Michael Kile testified that he was the biological father of the defendant. He
said that, the evening before the deaths of the victims, the defendant had come by his
residence between 9:30 and 11:00 p.m., appearing “fine” and not under the influence of
drugs or alcohol. He described how she had come to his residence the following morning,
the day of the victims’ deaths:
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She come flying in my driveway, dust was boiling, she got out and
hollered “Help me.” She got one, if I can remember which one it was, but one
of the children out of the back of the car and I said something about calling
911, and her phone did not work. I don’t think she could do nothing but text
on it[.]
He said that a call could not be placed with the defendant’s phone, so he called 911
with his own. Paramedics arrived in ten to fifteen minutes. He was in “panic mode” at the
time and could not recall if the defendant told him what had happened to the victims.
The defendant testified that, prior to the deaths of the victims, she had been doing
part-time work for a cleaning company and grooming dogs at a Petco store. The father of
the victims “[r]arely” saw them and did not pay child support. She said that, at the time of
the victims’ deaths, she was not using methamphetamine “very often at all” and had last done
so two days before. The evening before the victims died, she had smoked marijuana. The
morning of the 28th, she had fixed eggs for the children’s breakfast. Then, she and the
victims went outside where she set up the Slip and Slide for them to play on, which they did.
Sometimes, they would get into her car when she was outside with them, but she did not like
their doing so and would spank them. Most of the time when they did so, they would leave
the car door open.
The defendant testified that the victims usually took naps between noon and 2:00 p.m,
but “[m]ost of the time they wouldn’t go to sleep.” While the victims were outside, she had
been checking on them through a window in the master bedroom. She said that she had been
cleaning her residence and “basically realized that I didn’t hear them and it had been a minute
since I hadn’t heard them and I went out to check on them.” She went outside and heard the
eldest victim. She then took both victims and put them in her car. She did not call 911 from
her residence, because her cell phone would send only text messages.
She said that, in the garage, she had kept a marijuana pipe and a methamphetamine
pipe. She denied knowledge of materials for making methamphetamine found in the
dumpster, or providing a place to “cook” it.
Following this testimony, the defense rested its case.
ANALYSIS
On appeal, the defendant argues that the evidence was insufficient to support the
convictions and that the trial court erred in refusing to sever the counts regarding the deaths
of the victims from those alleging the initiation of the manufacture of methamphetamine and
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in imposing consecutive sentences. We will consider these claims.
I. Sufficiency of the Evidence
The defendant was indicted as follows:
Count 1: June 28, 2012, first degree murder for the death of [L.B.], during the
commission of aggravated child neglect, in violation of Tennessee Code
Annotated section 39-13-202.
Count 2: June 28, 2012, aggravated child neglect for the death of [L.B.], a
child under the age of 8 years, in violation of Tennessee Code Annotated
section 39-15-402.
Count 3: June 28, 2012, first degree murder for the death of [R.B.], during the
commission of aggravated child neglect, in violation of Tennessee Code
Annotated section 39-13-202.
Count 4: June 28, 2012, aggravated child neglect for the death of [R.B.], a
child under the age of 8 years, in violation of Tennessee Code Annotated
section 39-15-402.
Counts 5-8: June 28, 2012, the defendant initiated a process to manufacture
methamphetamine, in violation of Tennessee Code Annotated section 39-17-
435.
Count 9: June 28, 2012, purchase of ingredients used to produce or
manufacture a Schedule II controlled substance, to wit: methamphetamine, in
violation of Tennessee Code Annotated section 39-17-408.1
In assessing the defendant’s claim regarding the sufficiency of the evidence, we apply
the rule that where sufficiency of the convicting evidence is challenged, the relevant question
of the reviewing court is “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.
R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall
be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State
1
The defendant was found not guilty of this offense.
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v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the
credibility of witnesses, the weight and value to be given the evidence, and all factual issues
are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of
the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State
v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this
rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
Aggravated child neglect, as alleged in Counts 3 and 4, occurs when a person
“knowingly, other than by accidental means, . . . neglects a child under eighteen (18) years
of age, so as to adversely affect the child’s health and welfare,” and serious bodily injury
results. See Tenn. Code Ann. §§ 39-15-401(a), -402(a)(1). “Serious bodily injury” is
defined as bodily injury involving: “(A) [a] substantial risk of death; (B) [p]rotracted
unconsciousness; (C) [e]xtreme physical pain; (D) [p]rotracted or obvious disfigurement; or
(E) [p]rotracted loss or substantial impairment of a function of a bodily member, organ or
mental faculty.” Id. § 39-11-106(34). To sustain the conviction for first degree felony
murder, the State had to prove beyond a reasonable doubt that the defendant killed the
victims “in the perpetration of or attempt to perpetrate any . . . aggravated child neglect.”
Tenn. Code Ann. § 39-13-202(a)(2).
The defendant also was convicted of four counts of facilitation of the initiation of the
process to manufacture methamphetamine. Tennessee Code Annotated section 39-17-435
provides in pertinent part that “[i]t is an offense for a person to knowingly initiate a process
intended to result in the manufacture of any amount of methamphetamine.” Tenn. Code Ann.
§ 39-17-435(a). The statute further provides that “‘initiates’ means to begin the extraction
of an immediate methamphetamine precursor from a commercial product, to begin the active
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modification of a commercial product for use in methamphetamine creation, or to heat or
combine any substance or substances that can be used in methamphetamine creation.” Id.
§ 39-17-435(c). A person facilitates a felony if, “knowing that another intends to commit a
specific felony, but without the intent required for criminal responsibility under §
39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the
felony.” Id. § 39-11-403(a).
We will review the testimony regarding these convictions.
Investigator Scoggins testified that the defendant changed her explanation several
times as to what the victims had been doing while outside the morning of their deaths.
Among other statements, she first said that they had been playing the yard but later said it
was “possible” they had been under the front porch. When told of the results of the autopsies
of the victims, she said the victims had been beside the motor vehicle but later admitted she
had found the younger victim, R.B., in the right front passenger seat of the vehicle and L.B.
“partially hanging out of the right rear passenger door.” The defendant and other witnesses,
as we have set out, testified that the victims liked to play in the car.
The State presented testimony that the defendant tested positive for methamphetamine
when she was tested shortly after the bodies of the victims had been discovered. This drug
makes the user sleepy. Additionally, the evidence showed that the victims liked to play in
the defendant’s car and that on the day of their deaths the temperature was over 100 degrees.
The State presented testimony that, because of the broken interior door handles, it was
difficult, if not impossible, to open the doors from the inside the car. Meteorologist Jan Null
testified that the temperature inside the vehicle would have been about 45 degrees higher
than the outside temperature, which was 101 degrees on the day of the victims’ deaths. Upon
being questioned about the deaths, the defendant gave conflicting statements as to how long
the victims had been unsupervised and where she had discovered their bodies. Instead of
immediately going to a neighbor’s to seek help, the defendant, instead, drove the victims to
her father’s house, delaying the arrival of emergency medical personnel. Medical experts
testified that the core temperature of the victims could not have been so high unless they had
been in the defendant’s car.
From all of this proof, a reasonable jury could have concluded that the defendant was
sleeping, as a result of her use of methamphetamine, while the victims were in the yard,
unsupervised, for an unknown period of time. The defendant knew that the victims liked to
play in the car, that the day was hot, and that the car doors could not be opened by the
children from the inside of the vehicle. Further, a reasonable jury could have concluded that,
to mask her responsibility, the defendant gave conflicting versions as to what had occurred
and how she had found the victims. Thus, the evidence is sufficient to sustain the
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defendant’s convictions for felony murder and aggravated child neglect.
As for the facilitation of the initiation of a process to manufacture methamphetamine
convictions, Investigator Scoggins testified that he found four plastic bottles on the property
where the defendant resided, which had been used in the “shaker” method of
methamphetamine manufacture. In one of the bags where a bottle was found, officers also
discovered the defendant’s checkbook and, in another bag containing a bottle, was a warrant
addressed to the defendant. Also recovered from the bags were a lithium battery, Coleman
fuel, and a pill wash, all of which are used in the manufacture of methamphetamine. From
this evidence, a reasonable jury could have concluded that the defendant had engaged in the
facilitation of the initiation of a process to manufacture methamphetamine.
II. Severance
The defendant contends that the trial court erred by not severing the counts of the
indictment alleging the drug offenses from those charging felony murder and the aggravated
child neglect offenses.
Tennessee Rule of Criminal Procedure 14(b)(1) provides that “[i]f two or more
offenses are joined or consolidated for trial pursuant to Rule 8(b), the defendant has the right
to a severance of the offenses unless the offenses are part of a common scheme or plan and
the evidence of one would be admissible in the trial of the others.”
Before a trial court may deny a severance request, it must hold a hearing on the motion
and conclude from the evidence and argument presented at the hearing that (1) the multiple
offenses constitute parts of a common scheme or plan; (2) evidence of one of the offenses
is relevant to some material issue in the trial of the other offenses; and (3) the probative value
of the evidence of the other offenses is not outweighed by the prejudicial effect that
admission of the evidence would have on the defendant.
There are three categories of common scheme or plan evidence: (1) offenses that
reveal a distinctive design or are so similar as to be considered “signature” crimes; (2)
offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses that are all
part of the same criminal transaction. State v. Shirley, 6 S.W.3d 243, 248 (Tenn. 1999)
(citing Neil P. Cohen et al., Tennessee Law of Evidence § 404.11, at 180 (3d ed. 1995)).
“Decisions concerning consolidation and severance of offenses pursuant to
[Tennessee] Rules of Criminal Procedure 8(b), 13 and 14(b)(1) will be reviewed for an abuse
of discretion.” State v. Denton, 149 S.W.3d 1, 12 (Tenn. 2004) (citations omitted). “An
abuse of discretion in this context implies that the trial court applied an incorrect legal
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standard or reached a decision against logic or reasoning which caused an injustice to the
complaining party.” Id.
Following a hearing on the defendant’s motion to sever, the trial court explained why
joinder of the counts was proper:
The Court makes the following findings of fact: the crime scene where
the Aggravated Child Neglect and Felony Murder occurred was a secluded
property on a hill 50 to 75 yards off the roadway with trees that conceal it. The
dumpster on the property was full and overflowing with garbage. The Court
finds the Defendant was the person staying/living on the property with the
victims and with access to the garage, dumpster and trailer. The Court finds
the Defendant’s mother was a truck driver and was gone for long periods of
time. The Defendant’s mother was the only other person, that proof was
clearly offered, had access to the dumpster, trailer or garage. The Defendant
tested positive for having methamphetamine in her system on the same day law
enforcement responded to the crime scene. The shake bottle
methamphetamine labs and pseudoephedrine pill packets were found at the
crime scene soon after the crime occurred and property of the defendant was
found in close proximity to the shake bottles. A photo of the victims was
found in a bag with one of the meth labs.
The Defendant seeks a severance under [R]ule 14 b 1.
The Court finds that the offenses were properly joined by the Grand
Jury as the offenses are all part of the same criminal transaction or episode and
that proof of each criminal charge would be proof on the other criminal
charges during a trial. The Court finds the offenses charged all occurred
within a relative close proximity of time and location. The Court finds clear
and convincing proof of the [i]nitiation and [p]romotion of methamphetamine
manufacture was being committed by the defendant at the time of the
Aggravated Child Neglect charge. The Court finds the probative value
outweighs the danger of unfair prejudice. The Court finds the
methamphetamine manufacture is relevant to credibility and motive. The
Motion to Sever is DENIED.
In resisting the defendant’s motion for severance, the State made several arguments.
The State noted that the defendant tested “positive for methamphetamine on the day the
children died” and asserted that the continuing plan of the defendant was “the production and
use of methamphetamine . . . and that plan continued up until these two children tragically
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died . . . as a result of neglect.” Further, the State argued that the drug charges were
“corroborative of the state’s proof regarding [the defendant’s] drug use.” Defense counsel
responded, in part, that the State was unable to prove “these bottles and these blister packs
that were found in the dumpster were in any way involved or resulted in [the defendant’s]
conduct resulting in aggravated abuse or neglect.”
As we have set out, the State’s proof was abundant that the defendant knew the
victims were outside unattended on a very hot day and that they liked to play in the car, the
doors of which could not be opened from the inside by children. At the time this was
occurring, the defendant had methamphetamine in her system, a drug which would make her
sleepy. She gave police officers conflicting and changing accounts as to how she found the
victims and the emergency actions she took after doing so. However, the State presented no
proof that the defendant was inattentive because, as the victims were trapped and dying, she
was facilitating to initiate a process to manufacture methamphetamine or purchasing
ingredients to do so. In fact, the defendant did not contest the fact that she had
methamphetamine in her system the day that the victims died.
In support of its argument that the trial court was correct in allowing the drug offenses
to be tried with the felony murder and aggravated child neglect offenses, the State relies on
State v. Danita Lanette Wilson and Tiffany Nicole Norman, No. M2008-02850-CCA-R3-CD,
2011 WL 6382550 (Tenn. Crim. App. Dec. 19, 2011), perm. app. denied (Tenn. Apr. 11,
2012), in which the defendants were tried on various child neglect and endangerment charges
involving young children as well as others charging drug offenses. The State’s proof in that
case showed that drug screens of the victims revealed, in varying combinations, ecstasy,
methamphetamines, and cocaine. Concluding that the trial court had ruled correctly that the
drug and neglect charges could be tried together, this court explained that “[t]he child neglect
charges directly relate to the ongoing drug activity at the [defendants’] residence and show
that the [d]efendants acted knowingly in exposing the children in the residence to drugs.”
Id. at *18.
However, in the present appeal, we disagree with the State’s arguments that joinder
was proper of the offenses regarding the deaths of the victims and those regarding drugs.
The State presented no proof that the defendant’s inattentiveness to the safety and welfare
of the victims and the manufacture of drugs were, together, parts of a continuing scheme or
plan. In fact, the execution of the search warrant, during which officers located the
methamphetamine evidence, was executed approximately two weeks after the deaths of the
victims. Further, the State’s witnesses were unable to say exactly when, in relation to the
deaths of the victims, the drug facilitation had occurred. Given the explosive nature of the
two sets of charges, deaths of young children and manufacture of illegal drugs, we conclude
that the joinder constituted reversible error. Accordingly, we reverse the convictions for the
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drug offenses, Counts 5 through 8 of the indictment, and remand these for a new trial. The
reversal of these counts does not affect the convictions for Counts 1 through 4, which we
affirm.
III. Sentencing
The defendant argues that the trial court erred in ordering that the sentences for the
two felony murder convictions be served consecutively. We will review this claim.
Reviewing the grounds for consecutive sentencing, the trial court found that such
sentencing was proper because the defendant was a dangerous offender:
Everybody in this case has testified and the letter from the paternal
grandmother all seems to lead to a conclusion that [the defendant] never had
an example of how to be a mother, and that was testimony from more than one
person in this case. There seems to be some criticism about that but I’m not
sure other people are responsible for what she did. When I get to the factor
under discretionary consecutive sentencing I do find that the 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. Her children were introduced into a horrible place and around horrible
goings on, and the jury found that she was a facilitator and so around horrible
activity. So I do find that the proof in this case was that the defendant is a
dangerous offender whose behavior indicates little or no regard for human life,
the human life of her two boys, and no hesitation about committing a crime in
which the risk to human life is high, and all three of the following factors
apply: the circumstances surrounding the commission of the offense are
aggravated, the confinement for an extended period of time is necessary to
protect society from the defendant’s unwillingness to lead a productive life and
the defendant’s resort to criminal activity in furtherance of an anti-societal
lifestyle. There’s no doubt she was living an anti-societal lifestyle in the drug
activity, in this meth activity. She was leading an anti-societal [lifestyle] and
she took her children into that lifestyle with her. Most importantly I find that
the aggregate length of the sentence is reasonably relate[d] to the offense of
which the defendant stands convicted, and that is two murders. She is
convicted of two murders, she’s not convicted of one murder. She’s convicted
of two murders. So I find that that discretionary factor does apply and that it
relates to this defendant and I do sentence her to consecutive life sentences, all
other offenses to run concurrently or at the same time.
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The trial court may order multiple sentences to run consecutively if it finds by a
preponderance of evidence that one or more of the seven factors listed in Tennessee Code
Annotated section 40-35-115(b) apply, including that the 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. Id. § 40-35-115(b)(4). When the
court bases consecutive sentencing upon its classification of the defendant as a dangerous
offender, it must also find that an extended sentence was necessary to protect the public
against further criminal conduct by the defendant and that the consecutive sentences
reasonably relate to the severity of the offense committed. State v. Lane, 3 S.W.3d 456,
460-61 (Tenn. 1999); State v. Wilkerson, 905 S.W.2d 933, 937-38 (Tenn. 1995). As to
consecutive sentencing, our standard of review is abuse of discretion with a presumption of
reasonableness. State v. Pollard, 432 S.W.3d 851, 861-62 (Tenn. 2013).
In State v. Dorantes, 331 S.W.3d 370, 374-76 (Tenn. 2011), our supreme court
detailed the horrific injuries to the victim, whose cause of death was battered child syndrome.
When his body was found in a public park in Nashville, the victim had “multiple injuries to
virtually every surface of [his] body,” including “serious burns to entire areas of his feet . .
. [and] extreme burns to the entire area of the buttocks, rear upper thighs, and genitals.” Id.
at 375. The State’s medical expert testified that the victim’s injuries were consistent with his
“having been intentionally forced into a liquid over 150 degrees for at least one second,”
causing burns so serious that it would have been painful to sit or walk, and the resulting
infection damaging the victim’s internal organs so seriously that they were “failing at the
time of his death.” Id. Additionally, the victim had puncture wounds throughout his body,
as well as blunt trauma injuries to the brain, skull, and hand. These injuries supported the
finding that the defendant had committed the offenses of aggravated child abuse and felony
murder by aggravated child abuse.
Because the defendant in the present appeal, at a minimum, demonstrated extreme
callousness toward the health and welfare of the victims, and the results were fatal, the trial
court, in our view, had a reasonable basis for imposing consecutive sentences.
CONCLUSION
Based upon the foregoing authorities and reasoning, we affirm the judgments for
Counts 1-4 and reverse and remand those for Counts 5-8.
_________________________________
ALAN E. GLENN, JUDGE
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