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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 testified the defendant had not fed the child on that Thursday, May 28, while Tammy Trexler was at work.

While Drinnon and the defendant were watching television that evening, they smoked a joint of marijuana. They heard the baby cry after it was put to bed. The defendant went to check on the child and returned shortly. The child's mother then arrived from work, and the defendant told her the child had fallen out of bed.

Additionally, Drinnon testified that he and the defendant went fishing on the morning of May 29, returning around noon. Drinnon saw the baby sitting on the couch. The child had an ace bandage tied around his legs. When Drinnon asked what was wrong with the child's legs, the defendant replied that the child's ligaments and tendons were torn and bruised, and that he had to keep the child's legs tied together or else they would not stay together. The defendant told Drinnon that he had not taken the child to a doctor for treatment, and that the child had been born with his ligaments torn. Subsequently, the defendant and Drinnon left and were gone for thirty to forty-five minutes to look for a hubcap for the defendant's car. When they returned, the child was still sitting on the couch. The child never spoke, except to say "mama" and "juice." According to Drinnon, the baby was "real calm" and "happy" whenever the defendant left the room, but would shake and make painful faces whenever the defendant came close to him. Additionally, Drinnon said that he and the defendant smoked marijuana again on Friday, May 29.

Other evidence showed that when Scotty was taken to the hospital, Detective Lawrence Smith went there. After observing the numerous wounds, burns and bruises on the child, detective Smith talked to the defendant. The defendant told him that all of the child's injuries had been sustained when the child fell off a bed.

In a later statement given by the defendant to Detective Smith, which was redacted for purposes of this trial, the defendant said he and Tammy Trexler moved to Rogersville from California but that they were really from Florida. They had been living in Rogersville about three weeks. He explained Scotty's injuries by saying he put the child to bed and then heard something go "clunk." He went into the bedroom and saw the child's lips were turning purple. He took the child to the bathroom and held its body up but could not get it to breathe. He shook the child, trying to get it to breathe. The defendant explained that the child had received burns over his face when the child jerked a pot of hot water off the stove. The bruises and blood clots around the child's groin area had been caused by "heat" which turned into an infection. The defendant admitted he tied the child's legs together because the child had torn muscles. The defendant also told the detective that Tammy Trexler had been visited by a social worker in one of the towns where they had lived. The defendant said he never took the child to a doctor because he couldn't afford the expense. The defendant denied to Detective Smith that he had hurt or abused Scotty at any time.

In a statement Tammy Trexler gave to Detective Smith, she likewise claimed that the burns on Scotty's face had been caused by the child turning over a pot of boiling water. She said Scotty had gotten an infection in his penis, and that this caused him to sit with his legs "straight out," resulting in the muscles in his legs to be torn. She and the defendant had lived in North Carolina and they spent a week or two in California before settling in Rogersville. She had been investigated by "Social Services" in North Carolina after she took Scotty to the hospital for a broken arm. She explained that other times she would not take her child to a doctor because she feared the child would be taken away from her. She denied to Detective Smith that she beat the child and claimed she never saw the defendant beat him.

Charlotte Fields testified she saw Tammy Trexler at the Hawkins County Sheriff's Department on the night of Scotty's death. Ms. Fields heard Tammy say she couldn't understand what was wrong with Scotty, as there had been nothing wrong with him when she went to work. When an officer ...


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