        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  March 5, 2013 Session

            STATE OF TENNESSEE v. JACOB ANDREW BROWN

                     Appeal from the Circuit Court for Tipton County
                          No. 6861    Joseph H. Walker, Judge



                   No. W2012-01297-CCA-R3-CD - Filed August 7, 2013


On January 18, 2011, Ed and Bertha Walker were found beaten to death in their home. In
March 2011, Appellant, Jacob Andrew Brown, was indicted by the Tipton County Grand
Jury for two counts of premeditated first degree murder, two counts of felony murder, and
two counts of especially aggravated burglary. Appellant was sixteen at the time the crimes
were committed. The juvenile court held a transfer hearing and determined that Appellant
should be tried as an adult in the circuit court. At the conclusion of a jury trial, Appellant
was found guilty of each count. The trial court merged the two felony murder convictions
into the two premeditated first degree murder convictions and merged one especially
aggravated burglary charge into the other. Appellant was sentenced to life without parole
for the two murder convictions and eight years to be served at 100% for the especially
aggravated burglary conviction. The trial court ordered that all the sentences were to be
served consecutively. On appeal, Appellant argues that the juvenile court improperly
determined that his case should be transferred to the circuit court and that the evidence was
insufficient to support his convictions. After a thorough review of the record, we conclude
that Appellant cannot succeed on these issues. However, because the death of the victim is
the serious bodily injury upon which his especially aggravated burglary convictions are
based, we remand to the trial court for entry of a judgment reflecting a modified conviction
of aggravated burglary and for re-sentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed in
                      Part, Modified in Part, and Remanded.

J ERRY L. S MITH, J., delivered the opinion of the court, in which JOSEPH M. T IPTON, P.J., and
R OGER A. P AGE, J., joined.

Gary Antrican, District Public Defender and Davis S. Stockton, Assistant District Public
Defender, for the appellant, Jacob Andrew Brown.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Michael Dunavant, District Attorney General, and James Walter Freeland, Jr., for
the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background


        In March 2011, the Tipton County Grand Jury indicted Appellant for two counts of
premeditated first degree murder, two counts of felony murder, and two counts of especially
aggravated burglary. The State filed a petition on January 24, 2011, to transfer Appellant
from juvenile court to circuit court. The juvenile court held a hearing on March 3, 2011 and
concluded that Appellant should be tried in circuit court. On January 17, 2012, Appellant’s
jury trial began in circuit court.

        On January 18, 2011, Jeremy Walker went to visit his grandparents, Ed and Bertha
Walker, who were 80 and 75 years old respectively. He arrived around 2:00 p.m. to get the
laundry that his grandmother had washed for him. However, when he arrived, he discovered
that the door was locked. This was very unusual. Jeremy told his aunt, Myra Millican, that
he had gone by his grandparents’ house and the door was locked. Ms. Millican had spoken
with Ms. Walker early that morning and again at 11:30 a.m. when the Walkers returned from
a doctor’s appointment. Ms. Millican called her parents, and they did not answer either their
landline or cellphone. At 5:00 p.m., Ms. Millican went to the Walker residence and opened
the door with her key. She found her mother on the floor and ran out of the house. A
neighbor, Randall Scott Locke, Sr., known as Randy, went into the house and reported that
“[s]omebody blew their heads off.” The police were called.


       William Blake Archer left school early on the date in question. He saw Appellant in
the school parking lot when he left between 10:30 and 11:00. Mr. Archer agreed to take
Appellant to the Locke house. On the way, they stopped at a “smoke shop” that sold drug
paraphernalia as well as tobacco products and “synthetic stuff.” Appellant gave Mr. Archer
money to purchase two packets of Charge, a substance labeled as “bath salts.” Appellant
snorted the Charge at the skate park, and Mr. Archer took him to the Locke house.

        Anita Hance is a mail carrier. On January 18, 2011, she delivered a certified letter to
Randall Scott Locke, Sr. The letter required a signature for delivery. When she got to the
Locke house, she found a sixteen- or seventeen-year-old boy in the backyard. He signed for
the letter. She said that her interaction with him was “normal.”

                                              -2-
       Brandon James Wilburn is a cable contractor for Millington Cable. On January 18,
2011, he was at Mr. Smith’s house to install internet service. While he was outside, he saw
Mr. Walker walk to his mailbox. He saw Mr. Walker speak to someone across the street, but
he could not see who it was or hear what he said. Mr. Wilburn saw Appellant at the Locke
house and saw him pacing on the front porch and walking around the backyard for thirty
minutes. He saw Appellant sitting with his head between his legs and grabbing his head.
Mr. Wilburn attempted to speak to Appellant, but Appellant did not answer.

       Earlier that day, Gary Smith, a neighbor of the victims, saw the victims when they
came home from the doctor’s office. He was home because the cable company was installing
some wiring for his computer. He saw Appellant in the Locke’s backyard. He did not know
Appellant’s name, but Mr. Smith recognized Appellant because he had seen him at the Locke
house on other occasions. Mr. Smith went over in the afternoon to see how the doctor’s
appointment went for the victims. No one answered the door. Mr. Smith also called their
landline and cellphone and no one answered. Around 5:30, he heard Ms. Millican screaming.
Mr. Smith ran into the victims’ house behind Mr. Locke and saw Mrs. Walker lying in the
dining room and Mr. Walker lying in the living room. Mr. Smith said they were very bloody
and thought that they had been shot.

       At trial, Mr. Smith testified that there had been conflicts between him and the Lockes
about their parking in the street and how they needed to rake their leaves. He said that he
believed they considered him “nosy.”

       Special Agent Mark Reynolds with the Tennessee Bureau of Investigation (“TBI”)
responded to a request by the district attorney’s office to help with the murder investigation
of the Walkers. When he arrived at the Walker house, he saw Mrs. Walker on the floor in
the breakfast area of the kitchen and Mr. Walker in the living room floor. He said Mr.
Walker was face down and that the back of his head was “busted open.” Agent Reynolds
saw a great deal of blood spatter around both of the bodies. He called the TBI’s violent
crime response team.

       As part of his investigation, Agent Reynolds spoke with Mr. Wilburn and Ms. Hance.
They told him about the young man at the Locke house. Agent Reynolds checked the school
records and discovered that Appellant had left school early that day. Appellant’s teachers
told Agent Reynolds that Appellant was good friends with Randall Scott Locke, Jr., known
as Scott.

        Scott Locke testified that he had been friends with Appellant for four years. A few
times he had complained about his “nosy neighbor” to Appellant, and Appellant said, “Let’s
go kill them.” Scott assumed that this was a joke. Appellant had spent the night with Scott

                                             -3-
the night before the day in question. Scott had taken Appellant to school. Appellant sent
Scott a text message informing Scott that he had found a ride from school. Appellant sent
Scott a text message later that said, “You wanted your nosy neighbors dead, right?” Scott
did not respond.

       Scott came home from school at 2:45. He found Appellant walking around his
backyard. Scott testified that Appellant was acting normally. They ran errands with Scott’s
mother and returned to the house. At some point that afternoon, Appellant told Scott that he
had killed the Walkers. Scott did not believe him. Appellant showed Scott the baseball bat
which had several “very heavy dents” in it, but he still did not believe him.

       After Scott’s father, Randy, came home, they heard a horrible scream outside. The
Walkers’ relatives were standing in the street screaming. Randy ran to the Walker house, and
when he returned, he said they were dead. Randy told Scott, Appellant and Appellant’s
brother, Lucas, that they needed to leave with their friend, Zach Douglass. They went to a
friend’s house and smoked marijuana and played video games. Appellant’s mother picked
them up and drove them to the Admiralty Inn in Millington. The following day, Randy
Locke informed Agent Reynolds that he had rented a motel room for Appellant, Lucas, and
Scott.

       Agent Reynolds, along with other law enforcement officers went to the hotel. They
found the three teenagers and Zach Douglass in one room, and Appellant’s mother in an
adjoining room. While in the hotel rooms, the officers saw a pair of shoes that appeared to
have blood on them. Appellant told the officers that the shoes were his. The officers also
took a pair of blue jeans that had a prescription for Appellant in the pocket.

       The occupants of the hotel rooms were taken to the Munford Police Department and
interviewed. Agent Reynolds and Munford Police Captain Randall Baskin interviewed
Appellant. Appellant waived his Miranda rights prior to the interview. Initially, Appellant
denied any involvement with the victims. Shortly after the Appellant’s initial statement,
Agent Reynolds received a phone call informing him that Appellant’s shoes, blue jeans and
jacket from the motel room tested positive for blood.

       When Agent Reynolds told Appellant that the forensics team would be collecting
evidence connecting him to the murders, he noticed a shift in Appellant’s demeanor. He
gave the following statement to Agent Reynolds:


             I left school between 12:30 p.m. and 1:00 p.m. I walked around the
       neighborhood near the ball fields. I walked through the graveyard and to the

                                            -4-
skate board park. I walked to Scott Locke’s house on Wiley. I don’t really
recall what time I got there. I sat at Scott’s house and played with the dogs and
walked around his porch. The house was locked, and I wasn’t able to get in.

       The mailman came up, and I signed for a package for Mr. Randy. I put
the package on the porch on the ledge. It wasn’t a package. It was just mail
you had to sign for.

       A little bit after I signed for the mail I walked over to the Walkers. I
went over to ask to use the restroom. I knocked on the door, and Mr. Walker
came to the door. I asked him if I could use his restroom. He let me in and
asked me if I was locked out of the house. I told him I was, and he said to
come on in, and he pointed to the direction of the restroom. I went and used
the restroom. I came out of the restroom and went to the living room and
talked to Mr. Walker. I told him he had a nice house. He was sitting in a
chair. I was standing.

       All of a sudden I became very angry. I don’t think he said anything that
would cause me to get angry. I said thanks and left. We did not argue or he
did not know I was angry. I walked across to Scott’s and got an aluminum
baseball bat. I walked back over to the Walkers with the bat. I put the bat
behind me under my coat. I was hiding it.

        I walked back and knocked again, and Mr. Walker came to the door
again. I don’t recall saying anything. He opened the door. There is probably
more, but I don’t remember. Some of the things are blank to me. I went to the
front door on the porch, not the door at the driveway. We were both standing
in the living room. I did not say anything to him. I just pulled the bat from
behind my back, swung and hit him in the forehead in the front. He did not
fall, so I kept hitting him. He eventually fell face down.

        His wife was screaming and came into the room. I pushed her, and she
fell into the dining room. She was on the ground and I started swinging and
hitting her. I really don’t know where I was hitting her. I don’t know how
many times I hit her or Mr. Walker. I didn’t stop until they were not moving
anymore.

       I then left out the same door I came in. I think I locked the door behind
me, but I really can’t remember. I walked back over to Scott’s and threw the
bat beside the house in some trash. I just sat down on a basket thing in the

                                       -5-
       back yard and didn’t move. I sat there until Scott came home. After I put the
       bat down and before I sat down, I washed my hands in a puddle of water in the
       back yard. I think I also washed my face with the water in the puddle. When
       Scott came home, his mom and sister were in the truck with him.

              The story picks up and is exactly like I told you in the first statement
       from this point. As I sat in the back yard I was still angry and confused. I just
       couldn’t stop. I didn’t say anything while I was hitting them.


      Officers located the baseball bat in the location that Appellant described. The bat was
shown to Appellant, and he identified it as the murder weapon. A DNA sample was taken
from Appellant.

        TBI Special Agent David Harmon was with the violent crime response team involved
with the investigation of the murder of the victims. He collected items from the hotel room
including several pairs of shoes and Appellant’s cellphone. TBI Special Agent John Sullivan
collected blood samples from the victims. Special Agent Joel Franklin Wade is a forensics
specialist in computers and mobile phones. He found a text message from Appellant to Scott
stating, “Yo, dude, I got a ride, oh yeah, and you said you wanted your nosy neighbors dead,
right?”

        TBI Special Agent Laurence James with the violent crime response team processed
the victim’s house. He made note of the position of the victims’ bodies and the blood spatter
present at the scene. He concluded that Mrs. Walker had been moved after the beating.
Agent James based this conclusion on blood spatter on a piece of furniture, a pool of blood
a fair distance from the body, and a transfer bloodstain on her ankle. Agent James opined
that the blood spatter surrounding Mr. Walker indicated the brutality of the attack. He said
that he found blood spatter with hair attached in the hallway that was thirteen feet away from
the body. He also collected blood samples for DNA analysis from the victims.

       Agent James testified that the blood on Mrs. Walker was tested, and it contained a
mixture of DNA from both her and Mr. Walker. The blue jeans, shoes, and jacket collected
at the hotel tested positive for the presence of blood. The blood from these items were
compared to the DNA samples from the victims and Appellant. The blue jeans contained a
mixture of DNA matching both victims and a third unidentified person. The shoes contained
a mixture of DNA matching both of the victims. On the jacket, the DNA found belonged
mostly to Mrs. Walker, but Mr. Walker’s DNA was also found as a minor contributor. Agent
James testified that the blood stains on the jacket were “consistent with a baseball bat



                                              -6-
swinging backwards and depositing blood on the rear shoulder area.” The baseball bat
contained DNA matching Mrs. Walker.

        Dr. Karen Chancellor is the Chief Medical Examiner for Shelby County. She
performed the autopsies on the two victims. She testified that the cause of death for Mr.
Walker was blunt force injuries. She stated that he suffered at least fifteen blows to the head
and that any one of them could have been fatal. Dr. Chancellor also concluded that blunt
force injury was the cause of Mrs. Walker’s death. Dr. Chancellor stated that Mrs. Walker
sustained at least sixteen blows to her head, as well as additional blows to her body. She
stated that “one of the large lacerations on her head would result in enough bleeding that
could cause death.”

       The jury returned a verdict convicting Appellant on all six counts on January 19, 2012.
After additional proof, the jury determined that Appellant should be sentenced to life without
parole for the murder convictions. On April 3, 2012, the trial court held a sentencing hearing
and sentenced Appellant to eight years at 100% for the especially aggravated burglary
conviction. In addition, the trial court merged the two felony murder counts into the
premeditated first degree counts and one especially aggravated burglary count into the other.
The trial court ordered that all the sentences were to be served consecutively.

       Appellant filed a timely notice of appeal.

                                         ANALYSIS

                                 Transfer to Circuit Court

        Appellant argues that the juvenile court erred in transferring his case to circuit court.
He argues that: the juvenile court erred in its “process of assessing committability”; the
juvenile court’s denial of funding for an independent psychological evaluation precluded a
fair and impartial determination regarding committability; the juvenile court erred in holding
Appellant without bond; and the decision to transfer Appellant failed to follow the minimum
requirements set out in Tennessee Code Annotated section 37-1-128 and the process was
inherently flawed.

       A juvenile court may transfer a child, who is sixteen at the time the alleged crime was
committed, to the criminal court to be tried as an adult if the child is alleged delinquent and
charged with one of several listed crimes, including first degree murder. T.C.A. § 37-1-
134(a)(1). Before such transfer can occur, the juvenile must be provided with notice and a
hearing on the transfer. T.C.A. § 37-1-134(a)(2), (3). During the hearing, the juvenile court
must find “reasonable grounds to believe” that the juvenile committed the delinquent act as

                                               -7-
alleged, that the juvenile “is not committable to an institution for the developmentally
disabled or mentally ill,” and that the community’s interests require legal restraint or
discipline of the juvenile. T.C.A. § 37-1-134(a)(4)(A)-(C). In considering whether to
transfer the juvenile to criminal court, the juvenile court shall consider the following factors:


       (1) [t]he extent and nature of the child’s prior delinquency records;

       (2) [t]he nature of past treatment efforts and the nature of the child’s response
       thereto;

       (3) [w]hether the offense was against person or property, with greater weight
       in favor of transfer given to offenses against the person;

       (4) [w]hether the offense was committed in an aggressive and premeditated
       manner;

       (5) [t]he possible rehabilitation of the child by use of procedures, services and
       facilities currently available to the court in this state; and

       (6) [w]hether the child’s conduct would be a criminal gang offense, as defined
       in § 40-35-121, if committed by an adult.


T.C.A. § 37-1-134(b)(1)-(6).

       On appeal of an order of transfer from juvenile court, we do not decide where the
preponderance of the evidence lies, but whether there were reasonable grounds for the
juvenile court judge to believe that the three criteria of section 37-1-134(a)(4)(A)-(C)
mentioned above were present. See State v. Strickland, 532 S.W.2d 912, 920 (Tenn. 1975);
State v. Layne, 546 S.W.2d 220, 224 (Tenn. Ct. App. 1976). A juvenile court judge’s
discretionary decision to allow a juvenile to be treated as an adult should not be disturbed on
appeal, if there was probable cause to believe that the juvenile committed the crime and the
evidence at the hearing showed that the juvenile was not mentally impaired and should be
legally restrained. See State v. Mario A. Reed, No. M2009-00887-CCA-R3-CD, 2010 WL
3432663, at *6 (Tenn. Crim. App., at Nashville, Aug. 31, 2010), perm. app. denied, (Tenn.
Jan. 13, 2011); State v. Cecil L. Groomes, et al, No. M1998-00122-CCA-R3-CD, 2000 WL
1133542, at *7 (Tenn. Crim. App., at Nashville, Aug.10, 2000) (citing State v. Orange, 543
S.W.2d 344, 346-47 (Tenn. Ct. App. 1976)).



                                               -8-
       On March 3, 2011, the juvenile court held a transfer hearing to determine if
Appellant’s case should be transferred to circuit court. Agent Reynolds and Scott Locke
were the first two witnesses. They testified about the facts and the investigation relating to
the murders of the victims. Their testimony essentially laid out the same facts as related
above.
       The next witness was Dr. Wyatt Nichols with West Tennessee Forensic Services. Dr.
Nichols is a clinical psychologist specializing in forensic psychology. The juvenile court
requested that Dr. Nichols evaluate Appellant for purposes of the transfer hearing. Dr.
Nichols stated that the trial court’s request was for him to determine the following:


       [W]hether the child has a mental illness or mental retardation; whether the
       child is subject to voluntary admission or involuntary commitment; the type of
       care, training, and treatment required to address any mental illness or mental
       retardation found; any resources available to provide such services, included
       but not limited to those provided by Tennessee Department of Children’s
       Services; and the specific forensic issue, competency to proceed.


        Dr. Nichols testified that he reviewed records from Lakeside Hospital where
Appellant had in-patient treatment in September 2010. He reviewed records from out-patient
treatment that happened after Appellant’s discharge from Lakeside. Dr. Nichols further
reviewed notes from Appellant’s therapist, by whom he was treated when he was ten years
old. Dr. Nichols discussed Appellant’s treatment at Lakeside with Appellant’s psychiatrist,
Dr. Hoehn. Dr. Nichols stated that Appellant was tested for the doctor’s evaluation and he
was interviewed for about three hours over a two day period. Dr. Nichols submitted his
report to the juvenile court.

        Dr. Nichols concluded that Appellant was competent to proceed to trial and that he
was not mentally retarded. He stated that Appellant was of at least average intelligence. Dr.
Nichols stated that Appellant could benefit from hospitalization but that it was not absolutely
necessary. Dr. Nichols testified that Appellant did have a mental illness, and Dr. Nichols was
of the opinion that Appellant was developing schizophrenia. He said Appellant had the early
symptoms of paranoid schizophrenia.

       The juvenile court held the following at the conclusion of the hearing:


       The evidence today has shown that the child is 16 years or more of age and
       that he is charged with an offense that allows the State to petition the Court for

                                              -9-
transfer, that being first-degree murder, and there are other offenses delineated
in the statute. Only the most serious crimes allow the State to make this
request of the Juvenile Court.

       Once the request is made, of course, there are various elements that the
Court has to look at, but particularly that the child is 16 years or more of age
at the time of the alleged conduct, that he is charged with a transferable
offense.

        And then at the hearing the Court is to follow certain rules as set out by
State law, which the Court has followed. Reasonable notice was given to the
parents as required by statute.

       And then the Court is required to look at three grounds; that is, whether
or not there are reasonable grounds to believe that the child committed the
delinquent act that he is alleged to have committed, which the Court finds
certainly the State has shown reasonable grounds.

        The second test is whether or not he is committable to an institution for
the mentally ill. And, [defense counsel], certainly [Appellant] has significant
mental issues. I’m not finding guilt or innocence. I just deal with a probable
cause, reasonable grounds issue today. But the Court will believe that anyone
that is charged with committing a double murder with a baseball bat certainly
has significant mental issues. No one that is normal would commit such an
act.

       But that’s not the test that the Court is required to look at. The test is
whether or not he is committable into a mental institution. And some General
Sessions judges do a lot of commitments with adults. This Court in this
particular county doesn’t have that jurisdiction. But I do have the jurisdiction
to commit juveniles, and I’ve had some of these.

        And the question would be if the State tried to involuntarily commit
[Appellant] and he fought it and his parents fought it, would -- it would take
the testimony of two doctors to testify that he is dangerous to himself or others
and ask for a Court Order forcing him against his will to be placed into a
mental health institution. And I think Dr. Nichols was clear in his testimony,
he did not rise to that level.




                                       -10-
              Now, the Court had the evaluation done. It’s about three weeks, maybe
       30 days old or whatever. And I don’t think that the law requires someone to
       continue to be tested right up to the day that they come to court.

              The Court has -- we have exercised considerable resources in having
       this evaluation done, and Dr. Nichols indicated, yes, [Appellant] does have
       significant problems. But the Court does not believe it rises to the level where
       he could be involuntarily committed into a mental institution because he is
       mentally ill, which is what the test is.


       The juvenile court concluded that all requirements were met to transfer Appellant to
the custody of the circuit court.

                                        Committability

       Appellant first argues that the juvenile court erred because it used the wrong analytical
process to determine whether or not Appellant was “committable.” In his brief, Appellant
argues that the juvenile court “confuse[d] the legal obligations regarding burden of proof and
the Court appears to have placed no burden at all upon the State to affirmatively prove that
the appellant was noncommittable to a psychiatric hospital.” The State disagrees.

        As set out above, three witnesses testified at the transfer hearing, Agent Reynolds,
Scott Locke, and Dr. Nichols. Dr. Nichols testified extensively about his review of
Appellant’s records, Appellant’s testing in his office, and his interview of Appellant. Dr.
Nichols stated that while Appellant was mentally ill he was not committable to a psychiatric
institution. At the conclusion of the hearing, the juvenile court went through all the statutory
factors. Although the juvenile judge mentioned the use of two doctors in an involuntary
committment hearing and various requirements in an adult commitment hearing, the juvenile
court clearly stated that the test to be applied in Appellant’s case was “whether or not he is
committable into a mental institution.”

       We conclude that the juvenile court neither applied an incorrect analysis nor shifted
the burden of proof. Dr. Nichols testimony regarding his evaluation of Appellant. This
testimony was reasonable grounds upon which the juvenile court could rely to find that the
second criteria for transfer was met, namely, that Appellant was not committable. After a
review of the record, we conclude that there was probable cause to support the juvenile
court’s decision.




                                              -11-
                                           Funding

       Appellant also argues that the juvenile court’s denial of funding for the procurement
of his own psychological evaluation predetermined that he would be transferred and this
violated his right to due process and effective assistance of counsel.

       Appellant filed an ex parte motion requesting funds to hire a forensic criminal
psychologist to conduct a mental health evaluation. The juvenile court denied the motion in
a written order that stated the following, in part, “The Court previously ordered it’s own
independent psychiatric evaluation of the Defendant which has been completed and filed
with the Court. The Court finds that at the stage of proceedings presently before the Court,
a Transfer Hearing, that the independent psychological evaluation already conducted by the
Court is sufficient for the issues to be decided.”

       Appellant puts forth a confusing argument that Dr. Nichols stated that Appellant was
not committable because he was incarcerated. The following exchange occurred during the
cross-examination of Dr. Nichols which is pertinent to this issue on appeal:


       Q.     And your report says he’s not committable because he’s, I think you
       used the word incarcerated?
       A.     Well, I didn’t mean to word it that way, if I did. As long as he is
       incarcerated he is not committable at this time.
              Basically there are two reasons a person would be committable in
       [Appellant’s] situation. One would be they would be so psychotic that they
       couldn’t control themselves and there was a management problem for the jail
       or they may hurt themselves due to their psychosis or somebody else would
       hurt them, or they’re suicidal or homicidal. He’s neither to that point.


Dr. Nichols clarified later in his testimony that Appellant was not committable whether he
was incarcerated or not. He specifically stated, “he would not be committable if he were out
of jail.” Therefore, Appellant’s argument regarding this line of testimony is meritless.

       Appellant also argues that his right to due process was violated because the denial of
his request for funding for a psychological examination prevented him from confronting and
effectively cross-examining witnesses. Appellant cites to no authority that specifically states
that funding for a psychiatric evaluation for the defense is required under either the United
States or Tennessee Constitutions. Appellant relies upon the Advisory Commission
Comments to Rule 24 of the Tennessee Rules of Juvenile Procedure which states:

                                             -12-
       Regarding § 37-1-134, and subsection (b)(4) of Rule 24, it has been held by
       both the Tennessee Court of Appeals and Court of Criminal Appeals that,
       although the burden of proof is on the prosecution on such issue, there is a
       presumption of non-committability similar to that relating to sanity in criminal
       trials. Such presumption can be rebutted by evidence introduced by the
       defendant, and in such event the burden would shift back to the prosecution to
       persuade the court the child is not committable. See Boyd v. State, Tenn. Crim.
       App. (December 30, 1979); State v. Miller, Tenn. App., Middle Section (June
       25, 1976). The committee suggests, however, that it is good practice in any
       case for the court to arrange for testing and evaluation, evidence of which may
       be introduced by either side of the parties or the court on the issue of
       committability.

(emphasis added).

        Although Appellant cites this comment to support his argument, it actually does the
opposite. The Advisory Commission suggests that the best practice is for the court to order
testing and evaluation. In the case at hand, the juvenile court followed this suggestion. On
January 24, 2011, the juvenile court ordered an outpatient evaluation of Appellant by West
Tennessee Forensic Services. Furthermore, the juvenile court did not restrict Appellant’s
cross-examination of Dr. Nichols. Because the juvenile court acted precisely as directed in
the Advisory Commission Comments to Rule 24 and was allowed to fully cross-examine Dr.
Nichols, we conclude Appellant’s due process rights were not violated.

       Appellant also argues that he was afforded ineffective assistance of counsel based
upon this issue. Under the Sixth Amendment to the United States Constitution, when a claim
of ineffective assistance of counsel is made, the defendant bears the burden of showing that
(a) the services rendered by trial counsel were deficient and (b) that the deficient
performance was prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.
1996). In order to demonstrate deficient performance, the petitioner must show that the
services rendered or the advice given was below “the range of competence demanded of
attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order
to demonstrate prejudice, the petitioner must show that there is a reasonable probability that,
but for counsel’s deficient performance, the result of the proceeding would have been
different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner
must establish both prongs of the test to prevail on a claim of ineffective assistance of
counsel, failure to prove either deficient performance or resulting prejudice provides a
sufficient basis to deny relief on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997).

                                             -13-
       Appellant relies upon Howell v. State, 185 S.W.3d 319 (Tenn. 2006) to support his
argument. In Howell, our supreme court held that trial counsel’s representation of the
defendant was deficient because trial counsel failed to offer evidence at the defendant’s
juvenile transfer hearing concerning his mental health. 185 S.W.3d at 327. The supreme
court based this decision on the fact that trial counsel’s statement that he was waiting until
the criminal trial to present mental health evidence was not supported by the record and trial
counsel did not adequately prepare and investigate even if the record had supported his
strategy. Appellant argues that this supports the conclusion that the failure of defense
counsel to secure a mental evaluation is de facto deficient representation.

        However, the facts in the case at hand are very different. In this case, trial counsel
filed a motion requesting funding to pay for his own evaluation of Appellant’s mental health.
The trial court denied the motion. We cannot find any fault on the part of trial counsel. He
filed a motion which was denied by the trial court. There was no deficiency in counsel’s
representation of Appellant in this regard. Therefore, Appellant cannot meet both prongs of
the test set out in Strickland v. Washington, 466 U.S. 668, 694 (1984), and he cannot prevail.

       Therefore, this issue is without merit.

                                             Bond

      Appellant also argues that the juvenile court erred when it failed to set bond when the
case was transferred from juvenile court. The State concedes that the juvenile court erred
when it did not set bond. However, the State also argues that the error was harmless.

       At the conclusion of the transfer hearing, the juvenile court stated that it could not set
bond because Appellant’s case was a capital case and that the juvenile court lost jurisdiction
upon transfer. Under Rule 24(b)(7) of the Tennessee Rules of Juvenile Procedure, the
juvenile court must set bond in the order of transfer so long as the offense is bailable.
Tennessee Code Annotated section 40-11-102 states that “[b]efore trial, all defendants shall
be bailable by sufficient sureties, except for capital offenses where the proof is evident or the
presumption great.” Appellant was a juvenile when he committed the crime, therefore, the
death penalty was not applicable to his case. T.C.A. § 37-1-134(a)(1).

        Pursuant to the rules and statutes in this State, the juvenile court should have set bond
at the conclusion of the transfer hearing. The proper remedy for a juvenile to pursue when
bail is denied upon transfer is to appeal to the circuit court. T.C.A. § 40-11-144(b). In this
case, Appellant did so when he filed a motion to set bond on April 1, 2011, and the circuit
court set bond at $750,000.



                                              -14-
         We agree with Appellant that the juvenile court erred, but we also agree with the State
that, in view of the eventual setting of bond, the error was harmless. The circuit court set bail
upon receiving Appellant’s case. In addition we note that a court’s failure to grant a
defendant bond does not necessarily lead to dismissal of the indictment. State v. Johnson,
980 S.W.2d 414, 421 (Tenn. Crim. App. 1998).

       Therefore, Appellant is not entitled to relief on this issue.

                Tennessee Code Annotated section 37-1-128 Requirements

        Appellant also argues that the juvenile court did not follow the requirements of
Tennessee Code Annotated section 37-1-128 because there was no report from the
Department of Children’s Service (“DCS”). The State argues that Appellant failed to object
to the fact that there was no DCS report and cannot now claim error.

        Appellant does not cite any authority that states that a report from DCS is mandatory
before transfer. Tennessee Code Annotated section 37-1-128(c)(1) addresses the
adjudication of a child as delinquent, unruly, or dependent and neglected. That statute states,
in part, “the court may order that the department make an assessment of the child and report
the findings and recommendations to the court.” T.C.A. § 37-1-128(c)(1) (emphasis added).

        Furthermore, there is no evidence in the record that Appellant lodged any objection
to the fact that there was no DCS report before or during the transfer hearing. Typically, a
defendant’s failure to make a contemporaneous objection during trial constitutes a waiver of
an issue. Tenn. R. Evid. 103(a)(1); Tenn. R. App. P. 36(a) (stating that “Nothing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.”); State v. Cravens, 764 S.W.2d 754, 757 (Tenn. 1989). After a review of
the record, we agree with the State. Appellant made no objection to fact that there was no
DCS report. Therefore, he cannot successfully raise this issue on appeal.

                                 Sufficiency of the Evidence

       Appellant argues that the evidence was not sufficient to support his convictions of first
degree premeditated murder, first degree murder or especially aggravated burglary because
Appellant had a “clearly psychotic and impaired mind.” The State argues that the evidence
was sufficient to support the convictions.

      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

                                              -15-
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 deemed with a presumption
of innocence, the verdict of guilty removes this presumption and replaces it with one of guilt.
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); 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 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
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, including any fact required to be proved, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.
App. 1999). Even though convictions may be established by different forms of evidence, the
standard of review for the sufficiency of that 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). As such, all reasonable inferences from evidence are to be drawn in favor of
the State. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); see Tuggle, 639 S.W.2d at
914.

        Appellant’s argument on appeal consists of an assertion that Appellant “was psychotic
months before this event took place” and a recitation of the facts presented at trial, with no
citations to the record. He also argues that there are no available studies as to the effects of
“bath salts” to explain Appellant’s actions as a reaction to the drug used the afternoon of the
murders.




                                              -16-
        Appellant was allowed to present his own witnesses and present proof as to his mental
condition at trial. Dr. Fred Steinberg testified regarding his training as a forensic and clinical
psychologist and his practice. He completed an evaluation of Appellant and testified at trial
about his findings. The jury heard the evidence presented and found in favor of the State.
As stated above, it is not this Court’s role to resolve witness credibility and resolve questions
of fact. Pruett, 788 S.W.2d at 561.

       Furthermore, in the case at hand, Appellant confessed to the crimes. Our supreme
court has stated that “the state needs ‘only slight evidence . . . to corroborate a confession and
sustain a conviction.’” State v. Housler, 193 S.W.3d 476, 490 (Tenn.2006) (quoting State
v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000)). In addition, circumstantial evidence is
sufficient to corroborate such a statement. State v. Jones, 15 S.W.3d 880, 891 (Tenn. Crim.
App. 1999).

        There was ample evidence to corroborate Appellant’s statement. Mr. Archer stated
that he dropped Appellant off at the Locke house on the day in question. Appellant was seen
walking into the Walker house by Mr. Wilburn, the cableman. Ms. Hance, the postal carrier
also placed Appellant at the Locke house across the street from the Walker house. DNA
from the victims was discovered on Appellant’s shoes, blue jeans, and jacket. The position
of the bodies matched the description given by Appellant to the police. Appellant said he
used a baseball bat which was located by police. The bat had several large dents in it and the
medical examiner testified that the victims died from blunt force injury to the head.

        We conclude that there was sufficient evidence to support the conviction of Appellant
for all charges.


                                         Modification

       The State states in its brief that Appellant’s convictions for first degree murder and
especially aggravated burglary cannot stand where the serious bodily injury suffered by the
victims is death.

        Tennessee Code Annotated section 39-14-404 sets out the offense of especially
aggravated burglary, which is the burglary of a habitation where the victim suffers serious
bodily injury. The statute provides, “Acts which constitute an offense under this section may
be prosecuted under this section or any other applicable section, but not both.” T.C.A. §
39-14-404(d). This Court has held that a conviction for both especially aggravated burglary
and murder cannot stand because the killing of another is “serious bodily injury” under this
statute. See State v. Oller, 851 S.W.2d 841, 843 (Tenn. Crim. App. 1992). When such an

                                               -17-
event has occurred, the “proper remedy” is to modify the sentence for especially aggravated
burglary to aggravated burglary as a lesser included offense. See State v. Holland, 860
S.W.2d 53, 60 (Tenn. Crim. App. 1993); Oller, 851 S.W.2d at 843.

      Therefore, we remand to the trial court for entry of a judgment reflecting a modified
conviction of aggravated burglary and for re-sentencing.

                                      CONCLUSION

       For the foregoing reasons, we affirm the transfer from the juvenile court to the circuit
court and Appellant’s convictions for murder. However, we remand to the trial court for
entry of a judgment reflecting a modified conviction of aggravated burglary and for re-
sentencing.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




                                             -18-
