State of Tennessee v. Tina Gail Williamson ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 24, 2011
STATE OF TENNESSEE v. TINA GAIL WILLIAMSON
Appeal from the Circuit Court for Rutherford County
No. F-61007 Don R. Ash, Judge
No. M2010-01978-CCA-R3-CD - Filed March 13, 2012
Appellant, Tina Gail Williamson, was convicted by a Rutherford County Jury of second
degree murder, felony murder, and especially aggravated robbery. The trial court merged the
second degree murder conviction into the felony murder conviction. Appellant was
sentenced to life plus twenty years. On appeal, Appellant argues that the circumstantial
evidence was insufficient to support her convictions and that the trial court erred in
instructing the jury with a sequential jury instruction. We have thoroughly reviewed the
record on appeal and have concluded that the circumstantial evidence presented is sufficient
to support the conviction. With regard to the jury instructions, Appellant has failed to
include them in the record. It is Appellant’s responsibility to do so. Therefore, we are
unable to review this issue and it is waived. For these reasons, we affirm the judgments of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
D. K ELLY T HOMAS, J R., JJ., Joined.
Patricia L. Snyder, Nashville, Tennessee, for the appellant, Tina Gail Williamson.
Robert E. Cooper, Jr., Attorney General and Reporter, Leslie E. Price, Assistant Attorney
General; William Whitesell, District Attorney General, and Jude Santana, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
At the time of his death, the victim, General William Rains, was eighty-three years
old. He was a retired state trooper living at home and his wife was living in a nursing home.
Appellant’s husband met the victim at a flea market. The victim began spending a great deal
of time with Appellant and her family. He was included in family gatherings at holidays as
well as at cookouts at Appellant’s house and outings with Appellant’s children and
grandchildren. Appellant was also seen on a regular basis around town in the company of
the victim.
At some point, Appellant and the victim started a used car business together where
they would buy and sell used cars. As part of their business, the victim and Appellant had
a joint money market account. Because of the nature of the bank account, the restrictions
required the balance to be maintained at $10,000 to prevent the loss of the interest earned by
the account. The victim was very careful about maintaining the account balance above
$10,000.
On Saturday, September 1, 2007, the victim was found dead in his house. The body
was found sitting at the kitchen table dressed in an undershirt and boxer shorts. The cause
of death was determined to be five gunshot wounds to the head. Three shots were made at
distance range; one shot was made at close range; and one shot was made a contact range.
The bullets recovered from the victim’s body and one recovered from his lap were .22 caliber
40 grain weight long rifle round-nosed bullets. They were marked with an “F” indicating
they were the Federal brand. The medical examiner, Dr. Feng Li, also determined that there
was a blunt force injury to the back of the victim’s head. Dr. Li concluded that the victim’s
death occurred shortly before or shortly after 12:00 p.m. on August 31, 2007.
After searching the victim’s house, the officers could not find any evidence of forced
entry. Several items of value were left in the house. The officers opined that the victim’s
house had been staged to look like a burglary. The officers collected several items as
evidence. Included in those items were the boxer shorts that the victim was wearing at the
time of his death. Testing showed that the “penile access port” of the boxer shorts contained
DNA from both the victim and Appellant. At trial, the Tennessee Bureau of Investigation
(“TBI”) agent opined that the presence of Appellant’s DNA on the boxer shorts at that
location would be consistent with the victim getting dressed in his boxers immediately after
he and Appellant had sexual intercourse. Additional witnesses testified to details that lead
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to the conclusion that Appellant and the victim had a sexual relationship as well as a business
relationship.
Appellant told officers that on the day in question, Friday, August 31, 2007, the victim
picked her up at her house, took her to breakfast, they ran some errands, and the victim
dropped her off at her house around 11:00 a.m. She denied that they had a sexual
relationship.
The evidence presented by the State established a much different scenario. A witness
testified that around 8:30 a.m. on August 31, he saw the victim waiting in his car in
Appellant’s driveway. Appellant and the victim were seen having breakfast at Hardee’s in
Woodbury, Tennessee, around 9:00 a.m. A bank employee testified that the victim came into
the bank alone around 9:00 a.m. and withdrew $489 from the money market account he held
jointly with Appellant.
Detective Ty Downing with the Rutherford County Sheriff’s Department, obtained
Appellant’s cellular telephone records. He discovered that Appellant made a cellphone call
to Betty Olson at 11:21 a.m. on the day in question. The call was routed through the
cellphone tower closest to the victim’s house. Appellant made additional calls to Ms. Olson
at 11:30 a.m. and 12:03 p.m. Both of these calls were routed through the same tower. Ms.
Olson told Detective Downing that on the day in question, Appellant called her in an excited
state and asked Ms. Olson to come pick her up. She picked Appellant up around 12:00 p.m.
near a Wal-Mart on John Bragg Highway. The location was determined to be about a ten-
minute walk from the victim’s house.
Detective Downing was able to convince Ms. Olson to contact Appellant and have
officers record their conversations. There was more than one recorded conversation between
Ms. Olson and Appellant. During the conversations, Appellant repeatedly told Ms. Olson
that she should not tell the police that she picked up Appellant near the victim’s house on
August 31, 2007. Appellant told Ms. Olson she had an alibi for that time. She told Ms.
Olson that the victim was carrying between $1,500 and $1,800 at the time he was murdered.
Appellant told Ms. Olson that she was doing better when the victim was alive because he
would always give her money.
Around 2:00 p.m on the afternoon of August 31, 2007, Appellant withdrew $1,500
from the money market account at First Bank that she held with the victim. This withdrawal
brought the account balance below $10,000. The bank employees noticed that Appellant was
visibly shaking while at the bank. She told them they would not see the victim later that day
because he had a dentist appointment. It was later discovered that the victim’s dentist office
was not open that day. The bank employees were concerned because Appellant’s withdrawal
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had taken the account balance below $10,000. They called the victim to let him know, but
he did not answer his telephone. At 2:06 p.m., Appellant made a cash deposit of $1,900 in
her personal bank account at First National Bank in Manchester.
Late on August 31, 2007 or early on September 1, 2007, Appellant called her friend
Kim Blanton. Appellant asked Ms. Blanton for some valium. Ms. Blanton testified that the
call was unusual. When Appellant paid for the valium, she paid in cash and had a lot of
“wadded up” money. Appellant also called Ms. Blanton at 7:30 p.m. on September 1, 2007,
and started talking about money. She said “money, money, money.” Appellant’s husband
got on the telephone and told Ms. Blanton that Appellant was having a “sugar attack.”
On September 6, 2007, Appellant came to First Bank to close the money market
account that she held with the victim. The bank employees noticed that Appellant was again
shaking uncontrollably while at the bank. On that same day, Appellant presented a cashier’s
check made out to her at First National Bank in Manchester. She deposited $3,000 in her
checking account and $2,000 in a savings account. She took the remaining $5,000.23 in
cash.
A few days later, Appellant came to cash out a $100,000 Certificate of Deposit
(“CD”) set up by the victim. Appellant was the beneficiary of the CD. The bank manager
told Appellant that she did not have the proper documentation because the CD was blank.
Ms. Jamie Slatton, a friend of Appellant, was in the bank that day. She said that Appellant
was “messed up” and Ms. Slatton thought that Appellant was on drugs. Appellant told her
that she wanted to get a cashier’s check that day because she thought the bank tellers were
trying to “put her off.” Appellant returned the following day, but she did not have the
victim’s death certificate. As a result she was unable to cash out the CD.
On September 6, 2007 and October 24, 2007, officers executed two separate search
warrants at Appellant’s house. They found various guns and ammunition. Officers found
an empty box for a Federal Arms .22 caliber short rifle ammunition. In a nightstand in the
master bedroom, officers found a .22 caliber Smith and Wesson long rifle six-shot revolver
containing six rounds of ammunition. The ammunition in the Smith and Wesson was not the
Federal brand. Also found at Appellant’s home was a box of Federal ammunition. The box
was labeled that it contained 50 bullets. However, when officers looked inside the box, they
discovered that the box contained 45 Federal bullets and five bullets had been replaced with
other brands. The bullets found in the box at Appellant’s house appeared to be like the
bullets found at the crime scene. Agent Dan Royse with the Violent Crimes Unit of the TBI
test-fired the Smith and Wesson found in the nightstand at Appellant’s house. He testified
that the bullets he test-fired from the weapon in question had the same class characteristics
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as the bullets recovered at the scene. He stated he could not exclude the Smith and Wesson
as being the murder weapon.
Officers also found many other items of note. They found two newspapers with
headlines and news stories about the investigation into the victim’s murder. They found
unlabeled bottles with mixtures of prescription medication. They found the keys to the
victim’s Mercedes. They found the receipt book for rent from the tenants living in his rental
properties and a deed conveying a life estate from the victim to Appellant in a duplex in
which her daughter was living at the time. Officers also found many personal documents and
photographs belonging to the victim including: his wallet; his old union cards; his social
security card; a military identification card that expired in 1972; a hospital insurance card;
and two vehicle insurance cards.
On September 7, 2007, Detective Downing and Detective Ralph Mayercik interviewed
Appellant at the sheriff’s department. Appellant brought notes with her to the interview. She
also brought a checkbook. Detective Downing asked if he could make copies of the register.
As he was looking through the register, he discovered the title to the victim’s 1988 Mercedes.
He noticed that the title had a drop on it of what appeared to be blood. The drop was later
tested by the TBI and was determined to match a sample of the victim’s blood. When she
was asked about the title, Appellant told the detectives that the victim did not want his son
to have the car and that he had given it to her. However, the title had not been endorsed over
to her or anyone else.
Detectives Downing and Mayercik also questioned Appellant about her visit to the
bank the afternoon of August 31, 2007. She said that she was physically fine when she went
to the bank. The detectives told Appellant that employees at the bank had described her as
shaking and upset while she was there that afternoon. She told them that her diabetes must
have caused the shaking. Detective Downing also asked Appellant if the victim had a dentist
appointment the day in question. She replied that the victim did not have a dentist
appointment scheduled that day and, if he had, she would have known about it. During the
interview, Appellant admitted that she was taking pain medication other than that prescribed
by a doctor. Detective Downing discovered that Appellant was obtaining the medication in
other ways.
Appellant told the detectives her theory about the victim’s murder. She told them that
an African-American man who drives a gold- or champagne-colored Mercedes was mad at
the victim. She stated that she believed that the man waited on the victim and crept up on
him. Detective Downing located an African-American man who drove a car matching
Appellant’s description, but he could not find any connection between him and the victim.
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Two individuals who were incarcerated with Appellant before trial also testified for
the State. Gretta Adams was incarcerated with Appellant. Ms. Adams was incarcerated from
October 2007 to January 2008 for a misdemeanor. She testified that Appellant told her that
the victim was a pervert. Appellant told Ms. Adams that the victim would visit his wife in
the nursing home every Friday, but he did not go the Friday he was murdered. She also told
Ms. Adams that the murder did not happen the way that the police thought it did. Appellant
said she had made a snap decision that ended someone’s career.
Once, Appellant mentioned that the police had a weapon that they had already
analyzed and found to be clean. Appellant said that the gun belonged to the victim. Ms.
Adams said that Appellant never claimed to be innocent, but instead would say that the police
“alleged” that she had committed the offense. Ms. Adams related two events where
Appellant became upset with fellow inmates and physically attacked them.
Vanessa Fleming was also in jail with Appellant. She saw Appellant vomiting.
Appellant told the other inmates she was coming off of morphine. This prompted Ms.
Fleming to ask if Appellant was high when she killed the victim. Appellant responded that
she was “soberer than [she had] ever been in [her] whole life.” Ms. Fleming asked if
Appellant had been “going crazy” because she wanted more drugs. Appellant responded that
she was not. Ms. Fleming told Appellant that she did not understand why someone would
shoot somebody, particularly when they were in their eighties. Appellant asked Ms. Fleming
how she would feel about shooting someone if they had “put his hands on your baby girl.”
Ms. Fleming asked how old Appellant’s daughter was, and Appellant replied that she was
twenty-three or twenty-four.
Because of this conversation, Ms. Fleming asked the trustees to move Appellant to
another location in the jail. Appellant overheard Ms. Fleming’s request and attacked her.
Ms. Fleming was moved to another location.
Appellant also presented proof at the trial. Ron Williamson, Appellant’s husband,
stated that he met the victim at a flea market in Woodbury about four years before the victim
was murdered. He said that they became friends and that he introduced the victim to
Appellant a few months later. Mr. Williamson considered the victim to be a part of his
family. The victim attended many of the Williamson family’s gatherings. Mr. Williamson
stated that the victim thought of Appellant as a daughter and denied that Appellant and the
victim had a romantic relationship.
According to Mr. Williamson, Appellant was involved in car accident on May 4,
2004. As a result of the accident, she sustained a back injury and began taking morphine.
Appellant became addicted to morphine, but Mr. Williamson did not learn about her abuse
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of prescription medication until a year and a half later. He said that Appellant was on
medication when she was interviewed by the police.
Because of the back injury, Appellant’s mobility was limited. She quit work and
eventually stopped driving. Mr. Williamson stated that he and Appellant did not have any
financial problems. He also stated that he did not know that Ms. Olson picked up Appellant
in Murfreesboro on the date in question until Appellant was released on bond.
Mr. Williamson testified that he sold a North American Arms five-shot long rifle to
Willie Lack. However, Mr. Williamson stated that Mr. Lack did not take the gun box along
with the gun. Mr. Williamson claimed that he loaded the gun with five bullets from a box
of Federal Arms .22 long rifle ammunition. However, the empty gun box found at
Appellant’s house was for a Federal Arms .22 short rifle. He explained that the bullets could
have come from the box the officers found in his house that contained five different bullets.
Mr. Williamson also stated that shells for the Smith and Wesson gun were spread throughout
his house.
Mr. Williamson testified that he has never seen Appellant fire a pistol. However,
Danny Alsup, Appellant’s ex-husband testified that Appellant was in ROTC during school.
Mr. Williamson stated that he bought a Smith and Wesson .22 revolver for Appellant. He
said that she kept it in her nightstand, and he bought it for home protection. The police
seized the weapon when they searched Appellant’s home and tested it. As far as Mr.
Williamson knew, this was the only weapon that Appellant owned. Mr. Williamson stated
that he had twelve to fifteen weapons in the house at the time it was searched. The police
seized six.
Mr. Williamson testified that the victim gave a durable power of attorney to him and
Appellant for medical purposes if the victim became ill. The victim also put Appellant’s
name on a $100,000 joint CD. The victim and Appellant had a joint money market account
with a balance of $10,000 that they used to buy and sell cars. Mr. Williamson testified that
Appellant obtained the title and keys to the victim’s Mercedes before his death. According
to Mr. Williamson, the victim wanted Appellant to have the Mercedes. Also, the victim
deeded a remainder interest to Appellant for the duplex in which her daughter was living.
On August 31, 2007, Mr. Williamson arrived home at 7:15 p.m. to find Appellant
asleep on the couch. He did not recall her acting strangely on either August 31, or September
1. They became worried about the victim because they had made numerous calls, but he had
not called them back. They went to his house around 8:00 p.m. on September 1, 2007.
Appellant had a key to the house, and they used it to enter the house. Appellant went to
check the bedroom, and he checked the kitchen. Mr. Williamson found the victim in the
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kitchen. He and Appellant left the house, and he called 911. Mr. Williamson stated that
Appellant was “hysterical.”
Robert Motter is the boyfriend of Appellant’s daughter, Jessica Alsup. They lived in
the duplex behind the victim’s residence at the time of his death. Mr. Motter stated that he
regularly saw different cars in the victim’s driveway. He stated that the victim sold
moonshine. He said that a few days before the victim was murdered, he saw an African-
American male, who had a “gangster look” about him, leave the victim’s house. The
African-American male got into a champagne-colored Mercedes. Mr. Motter became
concerned and gave him “the mean eye.” After the man left, Mr. Motter went to check on
the victim, and Mr. Motter felt that the victim was acting nervous. Mr. Motter told the police
and Appellant about the man. Mr. Motter later identified the man in a line-up.
On August 31, 2007, Mr. Motter saw Appellant in the victim’s carport at 7:45 a.m.
He had just arrived home from work. He went into the duplex and went to sleep. When he
awoke later that day, the victim’s car was at the house. When Appellant and his girlfriend
learned that the victim had been killed they spoke with Appellant. Appellant told them that
she had been home all day.
Jessica Alsup is the daughter of Appellant and Danny Alsup. She lived in the duplex
behind the victim’s house with Mr. Motter. On August 31, 2007, Ms. Alsup left for work
at 7:00 a.m. She came home for lunch at 12:00 p.m. and returned to work. She arrived home
from work at 4:30 p.m. She did not remember seeing anything unusual that day. On
September 1, 2007, Appellant called her to tell her that the victim had been found dead in his
house. Ms. Alsup went home and there were police at the victim’s house when she arrived.
Jeffrey Ross lives near the victim’s house. He lives close enough so that he can see
vehicles coming and going from the victim’s house. He returned home from work on August
31, 2007, at 2:00 p.m. He heard a “crack” about an hour after he returned home. However,
he said such an occurrence was not unusual because kids were often setting off fireworks or
shooting at birds.
Mr. Ross stated that he saw Appellant outside of the victim’s house on the day the
victim’s body was discovered. He spoke with her and said she was crying “crocodile tears.”
He said that he thought she was engaging in “deliberate wailing.” Mr. Ross said that
Appellant was answering questions that no one was asking, such as where she was at the time
of the murder.
Chris Alexander had known the victim for about a year before his death. Mr.
Alexander met the victim at the Spot Café. The victim told Mr. Alexander that he sold
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moonshine. Mr. Alexander stated that he bought moonshine from the victim on many
occasions. When he purchased the moonshine, Mr. Alexander would go to the victim’s
house and the victim would bring the moonshine out to his car. He testified that he did not
know Appellant, but when they would speak of girlfriends, the victim would talk about a
“young girl” or “this other lady.”
Britt Knox lived across the street a few houses down from Appellant. Appellant and
her husband moved into the neighborhood in 2002. Mr. Knox paid Appellant’s bond of
$20,000 and paid $10,000 for a private investigator to help with the case. Mr. Knox stated
that Appellant helped care for his mother.
On August 31, 2007, Mr. Knox looked out his office window around 10:30 a.m. and
saw Appellant in her carport. When he looked out of the window later, Appellant was no
longer in the carport, but the backdoor was open. He noticed there was white SUV in the
driveway which he assumed was Mr. Williamson’s ex-wife’s car. Shortly thereafter, he
looked out his window again and saw that the backdoor was closed. He assumed that
Appellant was taking a nap. He did not see Appellant again that day until 3:00 p.m.
Mr. Knox did not learn until September 2, 2007, that the victim had been killed. After
he learned about the murder, he began his own investigation of the murder. Mr. Knox stated
that according to his investigation, it would have taken Appellant much longer than 10 to 15
minutes to walk to where Ms. Olson picked her up on August 31, 2007. He estimated that
it would have taken Appellant an hour to cover the distance in question. However, he agreed
that he did not know the exact distance from the victim’s house to the location where
Appellant was picked up. He also testified that there was a shortcut from the victim’s house
to the road that would have taken a much shorter time.
Mr. Knox also doubted whether Appellant could shoot a gun. He stated that her
physical state was such that her hands sometimes shook. He did not believe that she had the
steadiness to shoot in a tight pattern. He said that he had never seen Appellant shoot a
weapon. He acknowledged that he had never shot a .22 caliber weapon. He agreed that a
steady hand was needed to write a check.
On September 18, 2007, Mr. Knox spoke with Detective Mayercik. He told Detective
Mayercik that on August 31, 2007, the only car he saw at Appellant’s house was her mother’s
gray mini-station wagon. He did not mention the white SUV. He could not tell Detective
Mayercik whether Appellant left with the victim that morning. He was also not aware that
Appellant was in Murfreesboro the day of the murder. Mr. Knox claimed that he was
intoxicated the first time he spoke with Detective Mayercik.
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On rebuttal, the State presented two witnesses, Detective Todd Sparks of the
Rutherford County Sheriff’s Department, and David Johnson.
Detective Sparks assisted Detective Mayercik in his investigation. Detective Sparks
located a goldish-colored 1980’s model Mercedes. The car was registered to a David
Johnson. This car was the only car in Tennessee that fit the description. Mr. Johnson was
identified in a photographic lineup. Detective Sparks concluded that Mr. Johnson was not
involved in the victim’s murder. Detective Sparks discovered that Mr. Johnson was working
at the time of the murder. He also found no evidence that Mr. Johnson was acquainted with
the victim.
Mr. Johnson stated that he was identified in a photographic lineup. He acknowledged
that he owned a 1988 champagne-colored Mercedes in August 2007. Mr. Johnson testified
that on August 31, 2007, he went to work and left around 3:00 p.m. He said after leaving
work, he ran some errands and went home. Mr. Johnson stated that he had never met the
victim, had never been in the victim’s home, did not own a gun, and was not involved in the
victim’s murder.
Appellant was indicted by the Rutherford County Grand Jury for one count of first
degree premeditated murder, one count of first degree felony murder, and one count of
especially aggravated robbery. The above evidence was presented at a jury trial held January
27, 2009, through February 3, 2009. At the conclusion of the trial, the jury found Appellant
guilty of second degree murder, felony murder, and especially aggravated robbery. The trial
court merged the second degree murder conviction into the felony murder conviction. She
was sentenced to life plus twenty years. Appellant filed a timely notice of appeal.
ANALYSIS
Sufficiency of the Evidence
On appeal, Appellant argues that the evidence is insufficient to sustain her
convictions. The State disagrees. To begin our analysis, we note that when a defendant
challenges the sufficiency of the evidence, this Court is obliged to review that claim
according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves
all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259
(Tenn. 1994); State v. Harris, 839 S .W.2d 54, 75 (Tenn. 1992). Thus, although the accused
is originally cloaked with a presumption of innocence, the jury verdict of guilty removes this
presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the
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insufficiency of the convicting evidence. Id. The relevant question the reviewing court must
answer is whether any rational trier of fact could have found the accused guilty of every
element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Harris, 839
S.W.2d at 75. In making this decision, we are to accord the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own “inferences for
those drawn by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at
779. Further, questions concerning the credibility of the witnesses and the weight and value
to be given to evidence, as well as all factual issues raised by such evidence, are resolved by
the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn.
1990).
The guilt of a defendant, as well as any fact required to be proved, may be established
by direct evidence, by circumstantial evidence, or by a combination of both. See State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Recently, in David Lynn
Sisk, the supreme court clarified the use of circumstantial evidence as a basis for a
conviction. In David Lynn Sisk, the defendant was convicted of aggravated burglary and
theft at trial, primarily on the basis of circumstantial evidence. 2011 WL 2350304, at *2.
The circumstantial evidence involved a cigarette butt that was found at the scene and
contained a match to the defendant’s DNA. Id. On appeal, this Court reversed, holding that
the evidence was insufficient to support the convictions for aggravated burglary and theft of
$10,000 or more but less than $60,000. Id. at *1. The State appealed, arguing that the
convictions should be reinstated. On appeal to the supreme court, the court chronicled the
history of the use of convictions based on circumstantial evidence stating:
Years ago, in State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610 (1971), this
Court adopted a standard of proof in criminal prosecutions based exclusively
upon circumstantial evidence that purportedly required the State to prove facts
and circumstances “so strong and cogent as to exclude every other reasonable
hypothesis save the guilt of the defendant, and that beyond a reasonable
doubt.” Id. at 612. This Court also stated in Crawford that in such cases, “[a]
web of guilt must be woven around the defendant from which he cannot
escape and from which facts and circumstances the jury could draw no other
reasonable inference save the guilt of the defendant beyond a reasonable
doubt.” Id. at 613. This language was recited for years by Tennessee courts
as controlling in those cases in which the sufficiency of exclusively
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circumstantial evidence was at issue; indeed, it was used by both the Court of
Criminal Appeals and the trial court in this case. See Sisk, 2010 WL 3502512,
at *2. In State v. James, 315 S.W.3d 440, 455 n.14 (Tenn. 2010), however, we
pointed out the inconsistency between the terminology employed in Crawford
and its progeny and the standard of proof applied by the United States
Supreme Court in those cases in which the evidence is solely circumstantial.
See Jackson, 443 U.S. at 326, 99 S. Ct. 2781 (rejecting the notion “that the
prosecution [i]s under an affirmative duty to rule out every hypothesis except
that of guilt beyond a reasonable doubt”). Finally, in State v. Dorantes, 331
S.W.3d 370, 381 (Tenn. 2011), we adopted the federal standard in Tennessee
and eschewed any distinction between the standard of proof required in cases
based solely upon circumstantial evidence and that in cases where direct
evidence of guilt is presented by the State. Although we observed in Dorantes
that, as a practical matter, there was little difference between the federal
standard and the “reasonable hypothesis” language used in Crawford, we also
noted that, depending on the nature of the circumstantial evidence presented
at trial, the adoption of the federal standard of proof could result in a different
outcome in some cases. Id.
Id. at *4 (footnotes omitted). Based on that reasoning, the court reinstated the defendant’s
convictions, finding:
The undamaged condition of the cigarette butt, Detective Grooms’ testimony
that it was unlikely the cigarette had been tracked into the house and that the
victims themselves were not smokers, the proximity of the Defendant’s
residence to the burglarized house, the fact that the Defendant often was seen
smoking outside and had never been invited into the victims’ residence, and
the Defendant’s flight from police on January 3, 2007, all corroborate the
DNA evidence. While the intermediate appellate court posited that “[s]everal
plausible explanations for the presence of the defendant’s cigarette inside the
victims’ residence come to mind, including that the cigarette butt was ‘tracked’
into the residence,” Sisk, 2010 WL 3502512, at *3, our duty on appeal of a
conviction is not to contemplate all plausible inferences in the Defendant’s
favor, but to draw all reasonable inferences from the evidence in favor of the
State. Given Detective Grooms’ description of the cigarette butt and its
location [on the bottom of his shoe], it was perfectly reasonable for the jury to
believe the State’s theory that the Defendant had entered the victims’ residence
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during the burglary and left the cigarette butt there. The evidence is sufficient
to support the jury’s verdict.
Id. at *6 (footnote omitted). By reinstating the convictions in David Lynn Sisk, our supreme
court made clear that “[t]he standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” See State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275
(Tenn. 2009)).
Appellant presents several arguments finding fault with specific aspects of the
evidence presented at trial. She admits that she lied about being in Murfreesboro the day of
the murder. She states that the reason she lied was because she was trying to cover-up her
addiction to prescription painkillers. She argues that this fact is the basis for her calls to Ms.
Olson concerning not telling the police about giving her a ride in Murfreesboro the day of
the murder. This argument was presented by Appellant at trial. Clearly, this theory was
rejected by the jury. As stated above, it is not this Court’s role to resolve factual issues raised
by the evidence.
Appellant presents several arguments attacking specific evidence. She argues: (1) that
the testimony of Agent Royse, Agent Hardy, and Dr. Li did not present any evidence linking
Appellant to the murder; (2) that the Wal-Mart surveillance video showed an unidentified
person and Appellant opines that the gender of the person is not identifiable; (3) that the
testimony which was presented by the two women incarcerated with Appellant was never
substantiated; (4) that there was no evidence introduced showing that Appellant and the
victim had an argument before his murder; (5) that Appellant’s withdrawals from her joint
account held with the victim and the missing $489 withdrawn by the victim the day of his
murder do not connect Appellant with the victim’s murder; and (6) that the forensic evidence
failed to link Appellant to the victim’s death and created reasonable doubt.
These arguments are all based upon factual issues presented to the jury. As stated
above, we may not substitute our own “inferences for those drawn by the trier of fact from
circumstantial evidence.” Matthews, 805 S.W.2d at 779. Questions concerning the
credibility of the witnesses and the weight and value to be given to evidence, as well as all
factual issues raised by such evidence, are resolved by the trier of fact and not the appellate
courts. Pruett, 788 S.W.2d at 561. The issues raised by Appellant would require us to
determine the credibility of the witnesses and the factual issues raised by the evidence
presented. Such a decision is not this Court’s role on appeal.
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As stated above, our role on appeal is “to draw all reasonable inferences from the
evidence in favor of the State.” David Lynn Sisk, 2011 WL 2350304 at *6. Therefore, we
now review the evidence to determine whether a reasonable jury could find Appellant guilty
of first degree felony murder, second degree murder, and especially aggravated robbery.
First degree murder is felony murder is the “killing of another committed in the
perpetration of or attempt to perpetrate any first degree murder, arson, rape, robbery,
burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect or aircraft
piracy. . . .” T.C.A. § 39-13-202(a)(2). Second degree murder, is the unlawful and knowing
killing of another. T.C.A. §§ 39-13-201, -10(a). A person acts knowingly with respect to
a result of the person’s conduct when the person is aware that the conduct is reasonably
certain to cause the result. T.C.A. § 39-11-302(b). Pursuant to Tennessee Code Annotated
section 39-13-401, robbery is defined as “the intentional or knowing theft of property from
the person of another by violence or putting the person in fear. Aggravated robbery is
robbery that is “accomplished with a deadly weapon or by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon; or . . . the victim
suffers serious bodily injury.” T.C.A. § 39-13-402.
When the evidence is evaluated in a light most favorable to the State we conclude that
a reasonable trier of fact could determine the following facts. The evidence showed that the
relationship between Appellant and the victim was very close. One witness testified that the
victim asked her to buy a dildo for him so he could use it with Appellant. She also stated that
Appellant was very jealous of the witness’s relationship with the victim. Another witness
testified that he saw Appellant kiss the victim on the lips. Yet another witness stated that the
victim referred to a girlfriend. In addition, many witnesses testified to seeing Appellant and
the victim together often. They were seen at the bank arguing about money. According to
the witness, Appellant was asking the victim “where he put the money.” In addition, DNA
testing showed that Appellant’s DNA was present on the “penile access port” of the boxers
worn by the victim when he was murdered. Agent Hardy testified that the presence of
Appellant’s DNA would be consistent with the victim putting on his boxers after he and
Appellant engaged in sexual intercourse.
Appellant denied that she was at the victim’s house on August 31, 2007. However,
her daughter’s boyfriend, Mr. Motter, who lived behind the victim, testified that he saw
Appellant at the victim’s residence at 7:45 that morning. In addition, Ms. Olson informed
police that she picked up Appellant near the victim’s residence around 12:00 p.m. the day of
the victim’s death. The police discovered several cellular telephone calls placed by
Appellant to Ms. Olson that were routed through the cell phone tower nearest the victim’s
residence beginning at 11:21 a.m. and ending at 12:03 p.m. During the recorded telephone
calls and conversations between Ms. Olson and Appellant, Appellant told Ms. Olson that the
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police could not know that Ms. Olson gave her a ride on August 31, 2007. Appellant told
Ms. Olson that she had an alibi for that morning as long as the police did not find out about
the ride. Appellant and Ms. Olson discussed what story Ms. Olson could tell police to
explain the telephone calls. There was also an individual walking along John Bragg
Highway near the time of the telephone calls between Ms. Olson and Appellant in clothing
matching the description of the clothing Appellant wore on August 31, 2007.
The bank employees testified that the victim came into the bank the morning of
August 31, 2007. They said that he withdrew $489 from the joint money market account he
held with Appellant. They also testified that the victim was very careful not to let the balance
of the account go below $10,000. Later on August 31, 2007, the bank employees said that
Appellant came into the bank. They described her as “violently shaking.” Appellant made
a withdrawal of $1,500 from the joint account that brought the balance below $10,000.
Appellant then lied to the bank employees and told them that they would not see the victim
later that day because he had a dentist appointment. The victim did not have an appointment
and, in fact, the dentist office was not even open the day in question. Furthermore, when
officers asked Appellant if the victim had a dentist appointment the day in question she said
that he did not and if he did, she would have known about it. After Appellant left the bank,
the employees called the victim about Appellant’s withdrawal from the account. There was
no answer. Appellant closed the account shortly after the victim’s death. The bank teller
stated that Appellant was shaking the day she closed the account. On August 31, 2007,
Appellant made two deposits into her bank account at First Bank in Manchester on August
31, 2007. The first deposit was at 9:48 a.m. for $906.74 consisting of $380 in cash and a
payroll check. The second deposit was at 2:07 p.m. for $1,900 in cash. Appellant told Ms.
Olson that the victim had between $1,500 and $1,800 in cash when he was murdered.
The Assistant Manager at the victim’s bank testified that Appellant attempted to cash
out the $100,000 CD. She did not have the right documentation to cash out the CD. Ms.
Slatton, a friend, saw her at the bank when she was trying to cash out the CD. The friend
said that Appellant was talking very loudly and accusing the bank employees of trying to “put
her off.” Ms. Slatton believed that Appellant was on drugs because of her behavior at the
bank.
When officers arrived at the scene of the victim’s murder, they conducted an
investigation of the scene. The officers found no point of forced entry into the house and
stated that nothing of value appeared to be missing. They stated the house was staged to look
like there had been a burglary. Dr. Li testified that the autopsy of the victim showed that the
cause of death was multiple gunshot wounds to the head. There was also a blunt force
trauma injury to the victim’s head. Four bullets were recovered from the victim’s head and
another bullet was recovered at the scene.
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The officers did not find any weapons in the house despite the fact that multiple
witnesses testified that the victim traded guns. One pistol, an Iver Johnson .22 caliber, was
found in the glove compartment of a pick-up truck belonging to the victim. Appellant told
officers that the victim kept a Colt in his glove compartment and that the murderer must have
stolen it. When they searched Appellant’s house, officers discovered several firearms and
boxes of ammunition. Among the weapons found, the officers found a .22 caliber Smith and
Wesson long-rifle revolver containing six rounds of ammunition in the night stand. The
Smith and Wesson had a blood stain on it that tested positive for human blood but the TBI
was unable to generate a DNA profile from the stain. When this weapon was test-fired by
the TBI, the four bullets recovered from the victim’s head shared the same class
characteristics of the bullets that were test-fired. The agent testified that this weapon could
not be excluded as the murder weapon. The other weapons collected during the searches of
Appellant’s house were excluded as the murder weapon. Also during the searches, officers
found a box of .22 caliber Federal bullets. The box stated on the front that it contained 50
bullets, but when officers opened the box they found 45 Federal bullets, and five other bullets
from another manufacturer had been placed in the box. Testing had determined that the
bullets used to kill the victim were five, Federal long rifle .22 caliber bullets.
Officers also discovered items of interest in Appellant’s possession. At her house they
discovered: several of the victim’s personal belongings, including the keys to his Mercedes
and his wallet containing various union cards; the deed to the duplex in which Appellant’s
daughter lived; various personal photographs of the victim; a health care durable power of
attorney for the victim; and two CD’s both for $100,000, one payable to Appellant and one
payable to the victim and Appellant. Officers also found two newpapers with headlines
about the investigation of the victim’s murder.
During the interview of Appellant by the police, Detective Downing found the title
to the victim’s 1988 Mercedes in the checkbook brought by Appellant. The title was not
signed over to Appellant, but she maintained that the victim had given it to her. In addition,
Detective Downing noticed what appeared to be a drop of blood on the title. After testing
by the TBI, it was determined that the drop of blood was the victim’s blood.
When taken in a light most favorable to the State, we conclude that the evidence
presented at trial is sufficient to support the convictions at hand.
Jury Instructions
Appellant also argues that the jury instructions were unconstitutional because they
directed sequential consideration of lesser included offenses. The State points out that
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Appellant failed to include the jury instructions in the record on appeal and, therefore, the
record is inadequate for review on this issue.
We have reviewed the record on appeal and conclude that the State’s assertion is
correct. The jury instructions are not included in the record. Appellant admits as much in
her brief when she states in a footnote, “The Jury Instructions in State v. Williamson[,] No.
61007, Rutherford County Circuit Court Div III, were omitted from the Technical Record;
a copy of the trial attorney’s instructions are included in Appendix A.” Appellant may
reproduce and attach as an appendix to her brief those parts of the appellate record she deems
essential for the Court to read in order to determine the issues raised. However, the
documents Appellant attached are not part of the actual record received from the trial court
and, therefore, cannot be considered by this Court as part of the official record on appeal.
State v. Matthews, 805 S.W.2d 776, 784 (Tenn. Crim. App. 1990) (stating, “Rule 28,
Tennessee Rules of Appellate Procedure, does not contemplate attaching a transcript of
proceedings to a brief when the transcript has not been made a part of the record.”). The
proper procedure is to supplement the record with any documentation that is deemed
necessary to present a parties’ issues. Tenn. R. App. P. 24(e). Therefore, because Appellant
has failed to include a copy of the jury charge in the record on appeal her issue is waivable.
It is Appellant’s duty to provide a complete record on appeal. State v. Ballard, 855 S.W.557
(Tenn. 1993).
Furthermore, even if the issue had not been waived, Appellant could not be successful
on her issue. In her brief, she argues that the trial court erred in giving a sequential jury
instruction. Such instructions have been upheld by our supreme court. In State v. Davis, 266
S.W.3d 896 (Tenn. 2008), our supreme court stated the following:
[W]hile a defendant is entitled by our constitution to have the jury charged on
all offenses encompassed within the indictment and supported by the proof,
our constitution does not go so far as to mandate the order in which those
offenses are considered. Our constitution also does not prohibit the
requirement that a jury first reach a unanimous verdict of acquittal with respect
to a greater offense before it proceeds to consider a defendant’s guilt of a
lesser-included offense. We therefore reject the Defendant’s contention that
the trial court’s acquittal-first instructions in this case violated his state
constitutional right to trial by jury.
266 S.W.3d at 905.
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CONCLUSION
For the foregoing reasons, we affirm the judgments of the trial court.
___________________________________
JERRY L. SMITH, JUDGE
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