IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED APRIL SESSION, 1998 July 23, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TE NNE SSE E, ) C.C.A. NO. 01C01-9706-CR-00229 )
Appellee, )
) WILSON COUNTY
V. )
)
) HON. JIMMY C. MARTIN, JUDGE MEL ISSA J. P EWIT T, )
)
Appe llant. ) (Especia lly Aggravated Bu rglary)
FOR THE APPELLANT: FOR THE APPELLEE:
B. KEITH WILLIAMS JOHN KNOX WALKUP TAYLOR, TAYLOR, Attorney General & Reporter LANNOM & WILLIAMS 102 East Main Street ELLEN H. POLLACK Lebanon, TN 37087 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North
Nashville, TN 37243
TOM P. THOMPSON
District Attorn ey Ge neral 111 C herry Stre et
Lebanon, TN 37087
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Melissa J. Pew itt, appe als as o f right fro m he r convic tion in
the Crimina l Court of W ilson Co unty. Follow ing a jury trial, she was convicted of espe cially aggravated burglary. In her appeal, the Defendant presents the following issues:
1) Whether the evidence was sufficient to sustain a guilty verdict on the charge of es pecially aggravate d burglary;
2) Whether the trial court erred in allowing the admission of photographs of the victim’s injuries which unfairly prejudiced and inflamed the jury;
3) Whether the trial court erred in allowing the jury to consider a charge of an incidental crime in violation of the Defendant’s due process rights;
4) Wh ether the trial court erred in allowing the jury to consider the charge of aggravated assault in add ition to th e cha rge of e spec ially aggravated burglary; and
5) Wh ether the trial court erred in not allow ing the jury fo reman to announce the jury’s verdict as to the aggravated assault charge.
We affirm the ju dgme nt of the trial co urt.
Elizabe th Pewitt, the victim, is married to Dwayne Pewitt and they h ave three (3) children. In August 1995, the victim was separated from her husband and was living in a trailer with her ch ildren. D avid P ewitt is th e victim ’s brother-in-law and was married to the De fendan t. In October 1995, David Pewitt cam e over to perform various repair tasks at the victim’s trailer. During this time, he was separated from the Defendant. This contact between David Pewitt and the victim led to a rom antic involvement during which Pewitt moved into the trailer with the victim and her
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children. Pewitt stayed for approximately five (5) mon ths un til the victim aske d him to leave. P ewitt bega n living with the Defen dant ag ain at that tim e.
On March 11, 199 6, the victim paged David Pewitt on at least two (2)
occasions. The Defendant answered that page and instructed the victim, “[Y]ou had better leave us alone or you’ll regret everything you done [sic].” While at a friend ’s house, the victim p aged P ewitt again around 5:00 p.m . and he returne d her c all. W hile the victim was talking with Pewitt, she could hear the Defendant in the background screaming at Pewitt to tell the victim wha t she [De fendan t] said. Pewitt did not tell the victim what the Defen dant sa id, but he d id agree to meet w ith her to talk. The victim returned home around 7:30 p.m. and began putting her children to bed.
The victim was lying in bed with her child when she heard P ewitt’s car tur n into her driveway. She put on her robe and went to the door. As Pewitt walked up her steps, she asked him if he was alone and he replied that he was. She then asked him why he was driving as he appeared to be “pretty drun k.” Pewitt came inside and told her that he was not alone, that the Defe ndan t and h er friend Cindy were o ut in the car and that he was supposed to lead the victim outs ide for an a mbus h. Pewitt stated that he could not do that to the victim a nd sh e locke d the d oor. T he victim gave P ewitt a letter sh e had w ritten to him and the y began to hug an d kiss.
The next thing the victim can recall is someone banging on her front door.
She unlocked it because she did not want her door to be torn down. She saw the Defendant and Cindy outside and asked them to leave. The Defendant forced her way inside and was screaming at Pewitt to tell the victim “[I]t’s over.” The Defendant
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repea tedly stated, “It’s ove r, bitch. It’s over, d o you understa nd tha t.” The victim responded that Pewitt should tell her if it was over, and Pewitt declined to say the relation ship w as ove r. The victim’s four (4) year old daughter was sleeping on the couch, woke up and then began to cry. The victim took her into her bedroom and told her to stay th ere, that ev erything w as oka y. Wh en she came back into the living room, the Defe ndant a nd Pewitt were standing there, with Cindy standing just outside the door. Defendant jumped onto Pewitt and hit him, causing him to fall and break a table. The victim asked her to leave, but Defendant responded that she had better leave Pewitt alone. Cindy came inside slowly and stood beside the Defen dant.
Cindy hit the victim and then the Defendant began to hit her. Both of them attempted to pull the victim outside by her hair but the victim sat down. Cindy said, “Give me the knife, give me the knife, we’re going to cut this bitch’s hair.” The Defendant agreed and handed a knife to Cindy. When they brought out the knife, Pewitt walked outside. The victim screamed, begging the m to please leave and for Pewitt to help her. While the victim had her hands up trying to pull her hair away from them, they cut her hands. After the victim moved her hands, they cut her hair. Cindy said, “We ’re going to cut your p retty little legs up .” The Defendant repeated, “Yeah, we’re going to cut you up.” Cindy began to cut her while the Defendant beat her.
Defendant began cutting her legs while Cindy then beat the victim. The attack continued while the victim screamed for help. Pewitt stepped back inside and pulled both women off of the victim, then said, “My God, what have you all don e to her.”
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The victim asked him to take the women and leave. Wh en Pe witt got u p, Cind y and the De fendan t both kicke d the victim as they w ere leavin g.
After the victim heard their car leave, she walked over to her neighbor’s home, the Eady’s, and asked for them to call 911. Eady got some towels for her legs after he called 911, and they returned to her home to check on her childre n. The victim was bleed ing so badly that she returned outside because it was cold and she was trying to stop the bleeding. The ambulance arrived and transported her to the Univers ity Medical Center in Lebanon. She was in surgery for five (5) hours and stayed in the hospital for two (2) days. After she left the hospital, the victim stayed with her mother for one (1) week. She was in a wheelchair and had to be transferred by others from her wheelchair to the bed. The victim was unable to do anything for herself, and her husba nd cam e and h elped h er after she returned to her trailer. He stayed for three (3) or four (4) months. The victim displayed her scars to the jury.
Jeff Eady, next door neighbor to the victim, was in bed asleep when he and his wife heard s omeo ne ban ging on their front do or. Eady went to the door and saw the victim walking down the porch and across their yard. Eady opened the door and turned on the light and the victim came back up the stairs. Eady could see that the victim was bleeding, so he called 911 and asked for an ambulance. The victim advised him who attacked her and Eady relayed that information to the operator at 911. Eady noticed that she was losing a lot of blood so he got some towels. They walked back to her trailer to check on her children, then th ey wra pped towels around her legs. T he am bulanc e later arrived and tran sported the victim to the hosp ital.
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Anthony Murray, a sergea nt with the Wilson County Sheriff’s Department, was working on March 11, 1996, when he received a call for a domestic type situation. He was given a description of the suspect’s car and h ow m any pe ople were in the car. He procee ded dow n Coles Fe rry Pike and met a vehicle matching the description. He turned around and proceeded after the car. The car’s driver refused to stop u ntil Mur ray pa ssed the veh icle and stopped in the middle of the road and forced the car to stop. Cindy Mainer was driving the vehicle which belonged to the Defenda nt. When he got to the car and the suspects exited, he saw blood on the Defe ndan t’s hands when he put handcuffs on her. All three (3) of the suspects w ere intoxicated, belligerent and uncooperative. The Defendant cussed at Murray and then kicked the ba ck glas s out o f his patrol c ar with h er feet. H e did not find a k nife in their vehic le.
Vicky Taylor, sister to David Pewitt, had invited her brother and the Defendant to stay in her h ome o n the eve ning prior to this attack. During that day, Taylor was talking with the Defendant. The Defendant was angry at the victim because she had paged Pewitt on three (3) occasions earlier that day. Defendant told Taylor that “[she] ought to go kill Beth [the victim].” Pewitt w as in th e othe r room when this occurred. Pewitt and the Defendant left Taylor’s home fifteen (15) or twenty (20) minutes later and both had been drinking.
Sergeant Jason Locke was working as a detective on the night of March 11, 1996. Locke drove to the location where the suspect’s vehicle was stopped. He photographed the inside of the vehicle. Locke stated that all thr ee (3) su spects appeared to have been d rinking, so he allowe d som e time to e lapse prio r to conducting his interview s. During that time, Locke went to the hospital and
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photographed the victim’s injuries. He also p hotog raphe d the s cene at the vic tim’s residence. All these photos were exh ibited to the jury. When Locke returned to the jail where the suspects were held, he interviewed the Defendant. The Defendant was read he r constitution al rights an d signed a waiver o f those rights. After condu cting an in terview, Lo cke wro te the follow ing statem ent:
I was at w ork at 12 o’clock no on Mo nday, M arch 11 th, 1996 when B eth Pewitt paged me on my beeper. She paged me two more times later the same day. She was wanting to talk to David, my husb and. I to ld her she was fixing to regret everything she had ever done to me. On Monday night, David, Cindy and I were riding around drinking and I started thinking about it and got mad, and I to ld Dav id we w ould never be happ y again until I wh ipped her as s. W e drov e to Be th’s traile r in Norene and D avid we nt in first to get her out so we could take her down the road an d not do it at her trailer. I walked around an d saw David kiss her and put his arm around her and that’s when I w ent in and Cindy came in behind me. I kicked Beth in her chest, side, arms and head. The kn ife belong ed to me. I don’t kno w where it is at now. Bo th Cindy and I c ut Beth ’s legs, han ds, and hair. I’m not totally sure if the knife we u sed wa s mine or som eone e lse’s.
After he w rote the sta temen t, the Defe ndant re ad the sta temen t and sign ed it.
Defendant argues that the evidence is insufficient to su pport her conviction for espe cially aggrava ted burg lary beca use the victim consented to the Defendant entering her home and the State failed to prove the requisite intent of entry into the victim’s habitation. A person commits the offense of especially aggravated burglary by entering a habitation, without the effective consent of the property owner, with the intent to comm it a felony, and the victim su ffers serious bod ily injury. Tenn. Code Ann. §§ 39-14-4 02(a)(1) , -404(a).
When an accused challenges the sufficiency of the convicting evidence, the standard is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the
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crime b eyond a reason able do ubt. Jackson v. V irginia, 443 U.S. 307, 319 (1979). On appeal, the State is entitled to the strongest legitimate view of the evidence and all inference s therefro m. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8). Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 19 73).
Questions concerning the credibility of the witnesses, the weight and valu e to be given the evidence, as well as all factual issues raised b y the evidence, a re resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court reweigh or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835 . A jury verdict approved by the trial judge accredits the State’s witnesses and resolve s all conflicts in favor of the State. Grace, 493 S.W.2d at 476.
In the light most favorable to the State, the evidence shows that the Defendant entered the victim’s mobile home without consent of the victim in order to cause the victim seriou s bod ily injury. W hile the testimony from the victim makes it clear that the front door of her home was unlocked, there is no requirem ent within th e statute that a defendant must enter the home without consent through a “locked” door. The victim testified that she gave no consent to the Defendant to enter, but that she asked Defendant to leave the property. The Defendant nevertheless barged into the victim’s home. We find there was sufficient proof from which a reasonable trier of
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fact could have found the elements of especially aggravated burgla ry. This issue is without m erit.
Defendant argues that the admission of photographs of the injuries to the victim were prejudicial and inflamed the jury. Defendant further insists that his error was plain error as pursuant to Rule 52(b) of the Tennessee Rules of Criminal Procedure. These photographs showed the blood and lacerations on the legs of the victim. Defenda nt contends that the victim’s display of the s cars on her leg were sufficient to prove “serious bodily injury” as an element of especially aggravated burglary, and tha t these photog raphs only serve d to inflame an d excite the jury.
The admissibility of photographs is left to the sound discretion of the trial cou rt, and this court w ill not interfere w ith the trial court’s exercise of that discretion absent a showin g of clear a buse. State v. Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993) (citing State v. Banks, 564 S.W .2d 947 , 949 (T enn. 19 78)). To be admitted into evidence, a photograph must be relevant to an issue that the jury will decide and the probative value of the photo must outweigh any prejudicial effect that it may have upon the trier of fact. Braden, 867 S.W.2d at 758. Simply because a photograph vividly portrays the details of a gruesome crime or because the subject portrayed could be described in words does not render a relevant photograph inadmissible. Collins v. S tate, 506 S.W.2d 179, 185 (Tenn. Crim. App. 1973) (citations om itted).
In the case sub judice, the trial court did not abus e its disc retion in admitting the photog raphs into evidenc e. In order to convict a defend ant of espec ially aggravated burglary, the State must prove that the victim of the offense suffered
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“serious bodily injury.” Tenn. Code Ann. § 39-14-404(a)(2). Even if the visual demonstration of her legs in addition to the photographs was cumulative, the relevance of the photogra phs to depict the serious nature of the victim’s b odily injuries is not diminished. While such photos may be disturbing or even gruesome to some jurors, that alone is insufficient to render these otherwise relevant photog raphs ina dmiss ible. Havin g found no error, th is issue is w ithout me rit.
The Defendant argues that she should not have been prosecuted for espe cially aggravated burglary as this act was m erely incide ntal to the commission of another felony, aggravated assault. In addition, the Defendant asserts that the element of “serious bodily injury” in both the offenses o f aggravated assault and espe cially aggravated burglary cause the consideration of b oth offe nses to be in error and a violation of her rights against double jeopardy. Similarly, the Defendant concludes that it was “plain error” for the jury foreman to be precluded from reading the jury’s verdict on the charge of aggravated assault after finding her guilty of espec ially aggrava ted burg lary.
The elements of aggravated assau lt are that a p erson c omm its the offe nse if she intentionally or knowingly causes serious bodily injury to someone. Tenn. Code Ann. § 39-13 -102( a)(1)(A ). In orde r to com mit the offens e of es pecia lly aggravated burglary, a person must enter a building, not open to the public and without the owne r’s cons ent, with the inte nt to co mm it a felon y and c ause “seriou s bod ily injury” to anothe r person . Tenn. C ode An n. §§ 39 -14-402 (a)(1), -404(a). While the jury was charged on both offenses upon consideration of aggra vated assa ult as a lesser offense, the Defenda nt was convic ted of o nly one (1) offe nse o f espe cially aggravated burgla ry. The jury wa s spe cifically instruc ted by th e trial co urt that if it
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found the Defend ant guilty of especially aggravated burglary, th en it was n ot to consider any other offenses included within the charge to the jury. For these reasons, the Defendant’s reliance upon State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), and State v. Oller, 851 S.W.2d 841 (Tenn. Crim. App. 1992), is mis placed. In both Anthony and Oller, the defendants were indicted and convicted of a minimum of two (2) offenses, whereas in the case sub judice Defendant was only convicted of one (1 ) offense .
Defendant further relies upon the section of Tennessee Code Annotated which states that “[a]cts which constitute an offense under this section may be prosecuted under this section or any other applicable section, but not both.” Tenn. Code Ann. § 39-14 -404( d). Co urts ha ve inter preted this sta tute to m ean th at if the serious bodily injury element used to establish the especially aggravated burglary offense is the same injury that is an element of an accompanying offense, the defendant may not be convicte d of both the es pecially aggravate d burglary and th e accompanying offense. See Oller, 851 S.W.2d at 843; State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). This does not apply to Defendant’s one conviction in the case sub judice.
Finally, the De fenda nt argu es tha t the trial c ourt er red in not allowing the jury to anno unce the ver dict as to its de cision on the aggravated assault charge. As aggravated assa ult was o nly to be considered by the jury if the jury did not find the eleme nts of espe cially aggravated burglary, then there was no error by the foreman not reading the jury’s verdict on the aggravated assault charge. This issue has no merit.
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The judgment of the trial court is affirmed.
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THOMAS T. W OODALL, Judge
CONCUR:
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GARY R. WA DE, Presiding Judge
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L. T. LAFFERTY, Special Judge