State v. Ball ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1997 SESSION
October 31, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) NO. 03C01-9512-CC-00387
)
Appellee ) COCKE COUNTY
)
v. ) HON. REX HENRY OGLE, JUDGE
)
KATHY BALL, ) (Solicitation of First Degree Murder
) and Sentencing)
Appellant )
)
FOR THE APPELLANT FOR THE APPELLEE
Thomas V. Testerman John Knox Walkup
301 East Broadway Attorney General and Reporter
Newport, Tennessee 37821 450 James Robertson Parkway
Nashville, Tennessee 37243-0493
Eugene J. Honea
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
Alfred C. Schmutzer, Jr.
District Attorney General
Sevier County Courthouse
125 Court Avenue, Suite 301-E
Sevierville, Tennessee 37862
James B. Dunn
Assistant District Attorney General
339-A East Main Street
Newport, Tennessee 37821
OPINION FILED:________________
AFFIRMED
WILLIAM M. BARKER, JUDGE
OPINION
The Appellant, Kathy Ball, appeals as of right her conviction and sentence for
solicitation of first degree murder. She argues on appeal that she was improperly
convicted of an offense not contained in the indictment and that her sentence was
excessive.
After a careful review of the record, we affirm the Appellant’s conviction and
sentence.
On September 20, 1993, the Appellant spent the afternoon with her husband,
Harlan Ball at her parents’ residence in Whitesburg, Hamblen County. Her parents
arrived home sometime between 5:00 and 6:00 p.m. and her mother began preparing
dinner. The Appellant’s brother, Tim Fox, and his girlfriend, Betty Weston1, also
stopped by the Hamblen County residence and they visited with the Appellant until
dinner was served. Ball and the Appellant ate dinner with the Appellant’s parents and
shortly thereafter they drove back in separate cars to their home in Cocke County.
Later that evening, Tim Fox and Betty Weston stopped by the Balls’ mobile
home. While Fox and Weston were there, the Appellant asked Ball to go to the Food
City grocery store to buy a few soft drinks. She further suggested that he ask Tim Fox
to accompany him. Shortly after Fox and Ball left, Betty Weston told the Appellant
that she was going to the store to buy milk for her baby.
When Fox and Ball returned from Food City, they both got out of the car and
approached the mobile home. Ball carried the bottles of soda and walked slightly
ahead of Fox. Suddenly, Ball felt something poke him in the back. According to Ball’s
testimony, Fox grabbed him by the arm and quickly turned him around. Fox then
stabbed Ball in the chest with a knife. After the stabbing, Fox ran to his getaway car,
driven by Betty Weston.
Ball staggered into his mobile home where he told the Appellant that her
1
At the time of trial, Betty Weston had married Tim Fox and changed her name to Betty Weston
Fox. To avoid confusion, we have used the name Betty Weston throughout this opinion.
2
brother had stabbed him. The Appellant placed a towel over the wound to stop the
bleeding and she took him to a nearby hospital. In the emergency room, the treating
physician realized that Ball had been stabbed through the heart. As a result of the
immediate medical attention and further treatment, Ball survived the almost fatal
wound.
The evidence introduced at trial revealed that the Appellant was having an
extra-marital affair with her neighbor and co-worker, James Murray, approximately
three months before the solicitation. During this time, the Appellant complained that
Ball had threatened her and their two children with violence. Thus, on the day of the
stabbing, she caused a restraining order to be filed against Ball. Ball testified that he
had no prior knowledge of his wife’s affair or the restraining order, and he denied all
allegations of abusive behavior.
The evidence further revealed that the Appellant and Murray had contemplated
marriage sometime before the stabbing. However, for some unknown reason, the
Appellant never left or divorced her husband. Instead, she asked her brother, Fox, to
kill him. As payment for the murder, she gave Fox five hundred ($500) dollars on
September 20, 1993, and she promised to pay him another forty-five hundred ($4500)
dollars after she received payment under Ball’s two life insurance policies. 2 The
Appellant also promised to give Fox her husband’s car after the murder.
Betty Weston testified that the Appellant and Fox planned the murder of Ball
when they met at their parent’s home on September 20, 1993. According to their
scheme, the Appellant planned to ask Ball to stop at the White Supermarket on his
way home from her parents’ house. Fox planned to be waiting for Ball at the
supermarket where he would ask Ball for a ride to the Rankin Community. Upon
arrival in Rankin, Fox planned to shoot Ball and make his getaway in a car driven by
2
Ball had one policy through his work valued at $20,000.00. Approxim ately one month before
the stabbing, the Appellant had taken out another policy, valued at $13,350.00, on Ball. The Appellant
was the named beneficiary in both policies.
3
Betty Weston. In spite of this plan, the Appellant never asked Ball to stop at the
supermarket on his way home from her parent’s house. Instead, she arranged for the
murder to take place later that evening when Fox and Betty Weston stopped by the
Balls’ mobile home.
Approximately one week before the solicitation, Fox had made a previous
attempt on Ball’s life. At the Appellant’s request, Fox had taken an electrical wire from
the tail light of Ball’s car and put it into the gas tank. Supposedly, this would cause the
gasoline to explode when Ball turned on the ignition. Ball, however, discovered the
wire and removed it before he started the car. The police were never contacted
concerning this attempt on Ball’s life.
The Cocke County Grand Jury indicted the Appellant for attempted first degree
murder based upon the knife attack by Fox. After one mistrial, a jury convicted the
Appellant of solicitation of first degree murder, a Class B felony. The trial court
sentenced the Appellant, as a Range I standard offender, to serve eleven years in the
Tennessee Department of Correction.
I.
The Appellant contends that her conviction for solicitation of first degree murder
must be set aside because she was charged with attempted first degree murder, not
solicitation to commit first degree murder. This issue is without merit.
The indictment charged that the Appellant “did unlawfully, intentionally,
deliberately and with premeditation attempt to kill Harlan Ball, in violation of T.C.A.
Section 39-12-101, and T.C.A. Section 39-13-202.” At trial, the trial court instructed
the jury on the law regarding attempted first degree murder, attempted second degree
murder, attempted first or second degree murder by being criminally responsible for
the conduct of her brother, solicitation of first degree murder, and solicitation of
second degree murder. 3 The jury returned a verdict finding the Appellant guilty of
3
No issue is raised as to whether or not there is an offense of solicitation of second degree
murder in Tennessee, and such a determination is not required in this case.
4
solicitation of first degree murder.
In Tennessee, when an individual is accused of a crime, the State must give
the accused adequate notice of the charged offense by specifying it in the indictment.
See State v. Trusty, 919 S.W.2d 305, 309 (Tenn. 1996) (citing Tenn. Const. Art. I, §
9). “A defendant cannot be legally convicted of an offense which is not charged in the
indictment or which is not a lesser included offense embraced in the indicted charge.”
See Trusty, 919 S.W.2d at 310 (citing State v. Lampkin, 619 S.W.2d 520 (Tenn.
1981); McLean v. State, 527 S.W.2d 76 (Tenn. 1975); State v. Morris, 788 S.W.2d
820 (Tenn. Crim. App. 1990)). A lesser offense embraced in the indictment can be
either a “lesser grade or class” offense or a lesser included offense. See Trusty, 919
S.W.2d at 310.
In this case, the question on appeal is whether solicitation of first degree
murder is a “lesser grade or class” offense or a lesser included offense of attempted
first degree murder. We find that solicitation of first degree murder is a lesser grade or
class offense of attempted first degree murder and, thus, was included in the
indictment.
To determine whether an offense is a lesser grade or class of the indicted
offense, we look to Tennessee Code Annotated. See Trusty, 919 S.W.2d at 310. In
the Code, the Tennessee General Assembly has organized criminal offenses into
different categories. For example, in sections 39-13-201 through 213, the General
Assembly has divided criminal homicide into various grades including first degree
murder, second degree murder, voluntary manslaughter, criminally negligent
homicide, and vehicular homicide. In this arrangement, first degree murder is the
highest grade of homicide with the other offenses being of lesser grade in descending
order.
Similarly, the inchoate offenses listed in Tennessee Code Annotated sections
39-12-101 through 103 are divided into the grades of attempt, solicitation, and
conspiracy. Ordinarily, criminal attempt is one classification lower than the actual
5
offense attempted, unless the attempted offense is a Class C misdemeanor. See
Tenn. Code Ann. § 39-12-107(a) (1991 Repl.). Criminal solicitation is two
classifications lower than the actual offense solicited, unless the solicited offense is a
Class B or C misdemeanor. See Tenn. Code Ann. § 39-12-107(b). When the
intended offense is first degree murder, however, the classification of criminal attempt
and criminal solicitation is governed by Tennessee Code Annotated section 40-35-110
(1990). Attempted first degree murder, as charged in this case, is a Class A felony
punishable by fifteen to twenty-five years imprisonment for Range I offenders.
Solicitation for the same offense, however, is a Class B felony punishable by eight to
twelve years for Range I offenders. This statutory classification demonstrates that
solicitation of first degree murder is a lesser grade or class of attempted first degree
murder.
We, therefore, find that the trial court properly instructed the jury on the lesser
charge of solicitation of first degree murder, and affirm the Appellant’s conviction.
II.
The Appellant next contends that her sentence is excessive. She argues that
the trial court erred in applying enhancement factors (6), (12), and (15) to her
sentence. See Tenn. Code Ann. § 40-35-114 (6), (12), and (15) (Supp. 1996).
This issue is without merit.
Solicitation of first degree murder carries a sentence of eight to twelve years for
Range I offenders. In this case, the trial court sentenced the Appellant to eleven
years as a Range I standard offender after applying three enhancement factors and
two mitigating factors. The trial court found that: (6) the injuries inflicted upon the
victim were particularly great; (12) that the Appellant willfully inflicted bodily injury on
another person; and (15) that the Appellant abused a position of private trust. See
Tenn. Code Ann. § 40-35-114 (6), (12) and (15). With regard to mitigating factors, the
trial court found that the Appellant did not have a prior criminal record and that she
was instrumental in saving Ball’s life after the stabbing. See Tenn. Code Ann. § 40-
6
35-113 (1990).
When an Appellant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d)
(1991). This presumption is conditioned upon an affirmative showing in the record
that the trial court considered the sentencing principles and all relevant facts and
circumstances. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden
of showing that the sentence is improper is upon the appealing party. See Tenn.
Code Ann. § 40-35-401(d) (Sentencing Commission Comments).
The minimum sentence within the range is the presumptive sentence. For
Class B and C felonies, the trial court must start at the minimum sentence in the range
and enhance the sentence as appropriate for any enhancement factors and then
reduce the sentence within the range as appropriate for any mitigating factors. If there
are no mitigating factors, the court may set the sentence above the minimum in that
range. See Tenn. Code Ann. § 40-35-210 (1990). The trial court has full discretion to
determine the weight given to each factor, as long as it does not violate the principles
of the Sentencing Reform Act. Id. (Sentencing Commission Comments). “The weight
afforded mitigating or enhancement factors derives from balancing relative degrees of
culpability within the totality of the circumstances of the case involved.” See State v.
Moss, 727 S.W.2d 229, 238 (Tenn. 1986).
The Appellant contends that enhancers (6) and (12) are essential elements of
criminal solicitation, and therefore, cannot be considered to increase her sentence.
We disagree.
Enhancer (12) applies in cases where a defendant, during the commission of a
felony, willfully inflicts bodily injury upon another person, or the actions of the
defendant result in the death or serious bodily injury to a victim or a person other than
the intended victim. See Tenn. Code Ann. § 40-35-114 (12) (Supp. 1996). In this
case, the record supports the trial court’s finding that the Appellant’s willful actions
resulted in bodily injury to the victim, Ball. Moreover, injury to the victim is not an
7
essential element of the crime of solicitation to commit first degree murder. To the
contrary, the language of our solicitation statute indicates that neither physical contact
nor bodily injury to a victim is necessary to find a defendant guilty of criminal
solicitation.4
Tennessee Code Annotated section 39-12-102 (a) provides that “[w]hoever, by
means of oral, written or electronic communication, directly or through another,
intentionally commands, requests or hires another to commit a criminal offense, or
attempts to command, request or hire another to commit a criminal offense, with the
intent that the criminal offense be committed, is guilty of the offense of solicitation.”
Solicitation of first degree murder need not involve a completion of the intended crime
or injuries to the intended victim. In this case, however, there is no doubt that the
Appellant’s solicitation resulted in serious bodily injury to Ball. We, therefore,
conclude that the trial court properly applied enhancer (12) to the Appellant’s
sentence.
Turning now to the application of enhancer (6), we find that the trial court
properly applied this enhancer to the Appellant’s sentence. The trial court tracked the
language of Tennessee Code Annotated section 40-35-114 (6) in finding that the
personal injuries inflicted upon the victim, Ball, were particularly great. In this case,
there is no dispute that Ball suffered extensive and near fatal injuries as a result of
being stabbed in the heart. Moreover, as indicated above, those injuries are not
essential to the offense of criminal solicitation.
This Court has previously held that enhancer (6) is not an element of
solicitation of first-degree murder. See State v. Amy Renee Marcum, C.C.A. No.
03C01-9508-CR-00244 (Tenn. Crim. App., Knoxville, Sept. 25, 1996). Therefore, the
application of enhancer (6) was proper.
We also agree with the trial court’s finding that the Appellant abused a position
4
See also State v. T rusty, 919 S.W .2d 305, 3 13 n.7 (T enn. 199 6)(stating that the inch oate
offense of “attempted m urder does not neces sarily require either contact with the victim or bodily injury”).
8
of private trust. See Tenn. Code Ann. § 40-35-114 (15). The Appellant argues that
intra-spousal solicitation of first degree murder does not amount to an abuse of private
trust between spouses. We agree that the marital status between the Appellant and
the victim alone is not enough to justify the use of enhancement factor (15); however,
the facts of this case support the application of this enhancer. The record
demonstrates that Ball was retrieving soft drinks for the Appellant when he was
stabbed by Fox. The Appellant personally asked Ball to go with Fox to the White
Supermarket to fulfill her request. Clearly, she used her position as a cohabitating
spouse to set up the resulting knife attack by Fox. At that time, Ball was unaware of
the Appellant’s unfaithful behavior and he had no reason to distrust her or suspect that
she was soliciting his murder.
We further find that the trial court correctly applied two mitigating factors
pursuant to Tennessee Code Annotated section 40-35-13 (13). The Appellant does
not have a prior criminal record and she was instrumental in saving Ball’s life after the
knife attack. Nevertheless, we defer to the trial court’s finding that the enhancing
factors and the heinous nature of this case outweigh those mitigating factors. The trial
court considered the totality of the evidence to determine that an enhanced sentence
was proper for this Appellant.
Based on the evidence in the record, we conclude that the trial court properly
applied enhancers (6), (12), and (15) and the two mitigating factors in ordering the
Appellant’s sentence.
Accordingly, we affirm the judgment of the trial court.
__________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
9
___________________________
JOSEPH M. TIPTON, JUDGE
___________________________
CURWOOD WITT, JUDGE
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1997 SESSION
October 31, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
10
Appellee, ) No. 03C01-9512-CC-00387
)
) Cocke County
v. )
) Honorable Rex Henry Ogle, Judge
)
KATHY BALL, ) (Solicitation of First Degree Murder and
) Sentencing)
Appellant. )
CONCURRING OPINION
I concur in the results reached and most of the reasoning in the majority opinion.
I doubt, though, that the legislature intended for solicitation to be a “lesser grade” of an
attempt. I do not believe that the analysis used in State v. Trusty, 919 S.W.2d 305(Tenn. 1996), to identify the separate grades of homicide easily carries over to the part
of the criminal code listing the inchoate crimes -- attempt, solicitation and conspiracy.
See T.C.A. §§ 39-12-101--103.
The similarity among the three inchoate crimes is that they are all crimes of
preparation to commit crimes and do not depend upon the commission of the ultimate
crimes intended. Otherwise, though, they address separate concerns that are not
necessarily connected. For instance, prohibiting solicitation and conspiracy, as
opposed to attempt, focuses on the fact that a greater menace to society is presented
by criminals acting in concert than by one acting alone.
On the other hand, I believe the result reached in the majority opinion is correct
because of the defendant’s exposure to being criminally responsible for the acts of her
brother. Pursuant to T.C.A. § 39-11-402(b), a person is criminally responsible for
another’s conduct if “[a]cting with intent to promote or assist the commission of the
offense, or to benefit in the proceeds or results of the offense, the person solicits,
directs, aids, or attempts to aid another person to commit the offense.” (Emphasis
added). Also, an indictment for a crime in Tennessee necessarily includes the
11
commission of an offense by both the defendant’s own conduct and the defendant’s
criminal responsibility for another’s conduct. See T.C.A. § 39-11-401.
The indictment and the evidence in the present case encompass the defendant’s
criminal responsibility for the conduct of her brother. This led to the trial court’s
charging the jury relative to both the defendant’s criminal responsibility for her brother‘s
conduct and the crime of solicitation. To me, the fact that criminal responsibility for the
conduct of another includes the soliciting of another person to commit the offense
renders solicitation to be a lesser included offense under the facts and the indictment in
this case. See Howard v. State, 578 S.W.2d 83, 85 (Tenn. 1979).
Moreover, I think it is significant that the defendant essentially agreed with the
trial court relative to instructing the jury on the offense about which she now complains.
That is, when the trial court stated its intention to instruct on both attempt and
solicitation, defense counsel responded, “That will be fine for the defense, Your Honor.”
The defendant’s first complaint about solicitation is on this appeal. Under the position
taken by the defendant in the trial court, there is no issue regarding surprise or improper
notice by failing to specify the claim of criminal responsibility for another’s conduct or
the offense of solicitation. Thus, with the defendant having agreed to the jury
considering the offense of solicitation, the fact that solicitation could be an included
offense through the route of criminal responsibility for the conduct of another justifies
the defendant’s conviction being upheld.
__________________________
Joseph M. Tipton, Judge
12