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08/02/89 STATE TENNESSEE v. KERRY PHILLIP BOWERS

August 2, 1989

STATE OF TENNESSEE, APPELLEE
v.
KERRY PHILLIP BOWERS, APPELLANT-DEFENDANT



From Hawkins County, Honorable James E. Beckner, Judge. Second degree murder, unlawful possession of vending machine keys, possession of a controlled substance, and possession of drug paraphernalia

Joe D. Duncan, Presiding Judge, Jerry Scott, Judge, Joe B. Jones, Judge, Concur.

The opinion of the court was delivered by: Duncan

OPINION

Joe D. Duncan, Presiding Judge

The defendant, Kerry Phillip Bowers, was convicted of second degree murder and unlawful possession of vending machine keys and was sentenced to the Department of Correction for thirty-five (35) years and one (1) year respectively. He was also convicted of two misdemeanors, one for simple possession of a controlled substance, the other for possession of drug paraphernalia. He was sentenced to a local jail for eleven (11) months and twenty-nine (29) days and fined $50.00 for each of these misdemeanor convictions. The defendant was sentenced as a Range I standard offender, and the trial court ordered all of his sentences to be served consecutively.

Regarding the defendant's homicide conviction, we note that the victim in that case was Scott (Scotty) Avery Trexler, the twenty-one-month-old child of Tammy Trexler.

Tammy Trexler was also indicted and tried in the homicide case as well as for other offenses. She was convicted of aggravated assault, failure to report child abuse, and simple possession of a controlled substance. Co-defendant Trexler has not appealed her convictions.

In this appeal, the defendant Bowers claims that the trial court erred in failing to charge the jury on the lesser included offense of voluntary manslaughter, overruling his motion for change of venue, admitting evidence of prior bad acts committed by defendant upon Scotty Trexler, and in ordering consecutive sentences. We find no merit to any of these issues.

The defendant does not contest the legal sufficiency of the evidence regarding any of his convictions. However, a summary of some of the evidence is necessary in order to answer some of his issues, particularly his issue that a charge on the offense of voluntary manslaughter was warranted by the evidence.

The State's evidence established that the defendant committed a series of brutal and sadistic assaults over a period of several months against the victim, Scotty Trexler, which ultimately led to the child's death on May 29, 1987. At the time of the child's death, the defendant was living with his girlfriend, Tammy Trexler, and her son, Scotty, in a trailer on Thorpe's Chapel Road in Hawkins County, Tennessee. Tammy Trexler worked at the Orange Bowl in Rogersville. The defendant, who was unemployed, baby-sat with Scotty while his mother was at work.

On May 29, 1987, around 7:00 p.m., as Doris Jean Smith was leaving the trailer park on Thorpe's Chapel Road, the defendant came up to her car and told her somebody down at a trailer could not breathe. Ms. Smith went to the defendant's trailer and found a baby lying on its back. The baby was not moving, but she saw its eyes roll back. Ms. Smith told the defendant to bring the baby and put it in her car. The baby's face was blood red. As the defendant and Ms. Smith were taking the baby to the hospital, the baby made hollow noises from deep in its throat. The defendant kept saying, "Breathe Scotty, breathe."

At the hospital, Dr. Gregory Swabe saw the child. The child was unconscious, had no pulse, and was not breathing. According to Dr. Swabe, the defendant told emergency room personnel that the baby had fallen out of the bed and quit breathing.

Dr. Swabe described the injuries which he saw on the child. The child had "extensive abrasions and burns about his body" and was bruised "from head to toe." Two large hematomas, or blood clots, were "under the skin one in each groin." An area on each buttock had been burned to the point that the skin was removed. A burn extended over most of the right side of the child's face. Bruises were on the child's trunk, abdomen, back, and both legs. Dr. Swabe was of the opinion that the child was brain dead when he arrived at the hospital.

The child was taken by helicopter to the University of Tennessee Hospital in Knoxville, arriving there around 9:00 p.m. on May 29, 1987. Dr. William Buntain, a pediatric surgeon, examined the child. He observed multiple injuries upon the child. Dr. Buntain took measures to try to save the child's life, but his attempts were not successful. Dr. Buntain pronounced Scotty Trexler dead shortly after 11:00 p.m.

One of the State's witnesses, Matt Drinnon, testified that he lived in the Royston Trailer Park. Drinnon met the defendant and Tammy Trexler for the first time on Thursday, May 8, 1987. When he met the defendant, Drinnon noticed that Scotty's face was "all scabbed over." The defendant stated to Drinnon that Scotty had pulled a pot of hot water off the stove onto his face, and that this accident had happened in North Carolina before they moved to Rogersville.

On the same day, Drinnon was talking to the defendant while the defendant was outside waxing his car. Drinnon heard the baby scream and went inside the trailer to see what was wrong. The child was on the couch and was throwing its arms out, calling for his mother. The defendant told Drinnon that the child always did that, and then the defendant resumed waxing his car.

In the early evening on May 28, Drinnon saw Scotty again. The scabs were gone from the child's face. The defendant told Drinnon that the scabs had washed off when he gave the child a bath, and that he didn't take the child to the doctor because he could take care of it. Also, that evening, Drinnon held the child and noticed that the child's stomach was real hard. Further, Drinnon ...


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