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State v. Foust

Court of Criminal Appeals of Tennessee, Knoxville

August 15, 2019


          Session May 30, 2019

          Appeal from the Criminal Court for Knox County No. 98837B G. Scott Green, Judge

         The Defendant, Benjamin Foust, was convicted of ten counts of felony murder, two counts of first degree premeditated murder, four counts of especially aggravated robbery, two counts of aggravated arson, and two counts of possession of a firearm while having a prior felony conviction involving the use of violence or force. The trial court's merger of the various convictions resulted in two felony murder convictions, two especially aggravated robbery convictions, one aggravated arson conviction, and one firearm conviction. The trial court imposed an effective sentence of two consecutive terms of life imprisonment plus 105 years. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions; (2) the trial court erred in failing to grant the Defendant's motion to sever or bifurcate the firearm charges; (3) the trial court erred in admitting evidence of the Defendant's drug use; (4) the trial court improperly admitted several autopsy photographs; (5) the trial court provided an improper answer to a question from the jury posed during deliberations; and (6) the trial court erred in sentencing the Defendant. We conclude that the trial court erred in ordering the parties to stipulate to the Defendant's prior felony convictions and that the error was not harmless as to the firearm convictions. Accordingly, we reverse the Defendant's firearm convictions and remand for a new trial as to those convictions. We otherwise affirm the trial court's judgments.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part and Reversed in Part; Case Remanded

          Wesley D. Stone, Knoxville, Tennessee, for the appellant, Benjamin Foust.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, P.J., delivered the opinion of the court, in which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ., joined.




         The Defendant and his co-defendants, Ashlie Tanner and Teddie Jones, were indicted for numerous offenses arising from the murders of Eric and Dena Marsh on August 16, 2011. Following the Defendant's initial trial, he was convicted of ten counts of felony murder, two counts of first degree premeditated murder, four counts of especially aggravated robbery, three counts of aggravated arson, and two counts of possession of a firearm while having a prior felony conviction involving the use of violence or force. The trial court imposed an effective sentence of two consecutive life sentences plus 105 years.

         At the Defendant's initial trial, Ms. Tanner testified for the State, while Mr. Jones testified for the defense. See State v. Foust, 482 S.W.3d 20, 29-35 (Tenn. Crim. App. 2015). On direct appeal, this court held that the trial court committed reversible error by allowing the State to introduce, as substantive evidence, Mr. Jones's prior statement to the police in its entirety. Id. at 36-42. As a result, this court reversed the Defendant's convictions and remanded for a new trial. Id. This court also held that the evidence was insufficient to support one of the aggravated arson convictions and dismissed the charge. Id. at 42-44.

         At the retrial, the State presented evidence that Mr. Jones, who was Mr. Marsh's stepson from a previous marriage, had been stealing from the victims. At the Defendant's original trial, the State presented the evidence through the testimony of Mr. Philip Lanteri, Mr. Marsh's stepfather. However, Mr. Lanteri passed away before the retrial, and his prior testimony was read into evidence by his wife, Mrs. Linda Lanteri. According to Mr. Lanteri, Mr. Jones previously had taken Mr. Marsh's pain pills that had been prescribed to Mr. Marsh as a result of multiple shoulder surgeries, as well as jewelry and other items of value. Mr. Marsh had called the police of several occasions to report Mr. Jones's thefts. As a result, Mr. Marsh purchased a safe, which he kept bolted to the floor of his bedroom closet, and rented a safety deposit box at a bank. Mr. Lanteri was "sure" that Mr. Marsh kept jewelry and pain pills in the safe. On cross-examination, Mr. Lanteri acknowledged that he did not know what items were in the safe. He stated that Mr. Marsh kept a certain amount of pills at his home and stored the rest in the safety deposit box.

         At approximately 7:30 p.m. on the evening of August 16, 2011, Mr. Robert Cowles, the minister of the church where the victims attended, visited the victims at their home. Mr. Cowles testified that Mr. Marsh had undergone surgery recently and was not at church the previous Sunday. Mr. Cowles stated that Mr. Marsh's arm was in a sling and that he was uncomfortable and in pain. Mr. Cowles noticed tall bottles of prescription pills in the victims' living room. During the visit, Mrs. Marsh went into the back bedroom to lie down, and Mr. Cowles continued to speak with Mr. Marsh. Mr. Cowles left the victims' home at approximately 8:15 p.m.

         Later that evening, Mr. James Morsch, a retired member of the City of Knoxville Fire Department, was driving in the area of the victims' home when he smelled smoke. He saw that the back side of the victims' home was on fire and that the flames were approximately twenty-five to thirty feet tall. Mr. Morsch parked in front of the home. Another man, who was speaking on his cell phone, arrived and confirmed to Mr. Morsch that he was speaking to a 9-1-1 operator. Records established that the first call regarding the fire was made to 9-1-1 at 9:10 p.m.

         Two or three people approached Mr. Morsch and reported that one of the home's residents was unaccounted for and would not have been able to exit without assistance. Mr. Morsch saw a vehicle parked in the front yard of the victims' home. He tried to open the front door of the home, but it was locked. He beat on the front door and screamed, but he did not hear anything from inside the home. After someone kicked the door open, Mr. Morsch tried to crawl into the home but was unable to do so due to the smoke and heat from the fire. Emergency personnel arrived and discovered the victims' bodies inside the home.

         Investigator Travis Kincaid, a criminal investigator with the Knoxville Fire Department who specialized in arson investigations, responded to the scene. He testified that the "fully involved" fire, where the fire was coming out from the back, the eaves, and all areas of the house, roused his suspicion because "that's not a normal or natural fire progression." He stated that as a result, he suspected that someone had set the fire using an accelerant. After the area was safe, Investigator Kincaid brought in a dog trained to alert to areas of ignitable liquid, and he collected the evidence to which the dog alerted.

         Ms. Danielle Wieberg, a crime scene technician for the Knoxville Police Department, responded to the scene, arriving at around 9:30 p.m. Firefighters discovered the body of a man, later identified as Mr. Marsh, in the living room and brought him outside. Ms. Wieberg was allowed to enter the home once it was cleared and observed a portion of the ceiling, insulation, and debris on the floor.

         Firefighters located a female victim, later identified as Mrs. Marsh, in the back bedroom. Also in the back bedroom were a shotgun, a hammer, a red purse, and the remains of a pillowcase containing multiple pill bottles. Although presumptive tests failed to indicate the presence of blood on the hammer, Special Agent Keith Proctor of the Tennessee Bureau of Investigation ("TBI"), a forensic scientist who the trial court accepted as an expert if forensic biology, testified that extreme temperatures resulting from a fire can destroy DNA. Ms. Wieberg noted that a puddle of lighter fluid was located inside the house. She also found a roofing hatchet with blood on the mallet lying on top of a purse near the kitchen door. The purse contained two empty pill bottles. Later testing revealed Mr. Marsh's DNA on the roofing hatchet.

         Ms. Wieberg testified regarding the areas of blood found throughout the house and was accepted by the trial court as an expert in bloodstain pattern analysis. She was unable to conduct a complete analysis of the crime scene due to the damage caused by the water used to extinguish the fire. She observed a small grouping of blood droplets on the side of a kitchen cabinet. She stated that the blood droplets were spherical in nature, which indicated that they hit the surface at almost a ninety-degree angle. She noted that the droplets were located near the top of the cabinet and that it was unlikely that the victim or assailant was tall enough to account for the droplets. Rather, she believed the location of the droplets indicated that they were the result of cast-off, which occurs when blood accumulates on an object used to strike a victim and is subsequently shaken off the object onto another surface. She stated that at least two blows are required to obtain cast-off, one to break the skin and cause bleeding so that the blood gets on the weapon and another during which the blood hits the surface while the weapon is swung.

         Ms. Wieberg observed a large quantity of blood that she described as "flow from gravitational" on the same side of the cabinet. She testified that the blood pattern indicated that a bloody object was against the surface. She stated that someone who was wounded possibly leaned against the cabinet and that blood ran down the cabinet as a result. She noted that the object hit the cabinet hard enough to cause impact spatter and stated that blood could have been dripping down from the portion of the bloody object that was not in contact with the cabinet.

         Ms. Wieberg observed blood spatter on the front of the kitchen cabinet that struck the cabinet at a downward angle. She stated that the blood could have been from an injured victim or the result of cast-off from a weapon. She also stated that the assailant would have been swinging the weapon toward the cabinet. She observed blood on a wall outside the kitchen, which she believed was either cast-off from a weapon or from an injured victim moving through the area.

         Ms. Wieberg testified that a large quantity of blood was in a chair and a t-shirt tied around the chair, which indicated that someone who was bleeding either sat in the chair or leaned against it. She also noted droplets of blood in the chair. She said some of the blood stains could not be clearly explained and could have resulted from "the chaotic movement of the injured victim through a crime scene." She observed a quantity of blood spatter along the entertainment center in the back bedroom. She was unable to conduct a complete analysis of the spatter and stated that it could have resulted from a bleeding victim's movement through the area. She observed blood on a large blue comforter, a pair of shorts, a shoe, and a pair of eyeglasses that were found near Mr. Marsh in the living room. A cane also was recovered near Mr. Marsh.

         The victims' home included a basement, and the only access to the basement was through an entrance outside the home. Ms. Wieberg observed blood in different areas of the basement, including a quantity of blood near a table with tools on it. On cross-examination, she testified that based on the extent of Mr. Marsh's injuries, she believed that he was attacked first in the basement and then again upstairs.

         Ms. Ashlie Tanner testified that she had been charged in connection with the case and that the State offered her a plea deal in which she would plead guilty to two counts of facilitation of felony murder and would receive a sentence of twenty-five years at thirty percent in exchange for her truthful testimony. Her charges of especially aggravated robbery and aggravated arson also would be dismissed.

         Ms. Tanner testified that she met the Defendant in October 2010 and was in a relationship with him at the time of the offenses. They shared a house with the Defendant's mother and owned a green Ford Explorer. Ms. Tanner met Mr. Jones at the end of 2009, and they would "get high together." She said that she and Mr. Jones used cocaine and pain pills and that they had used them on the day of the offenses. She stated that the Defendant also abused pain pills and that he used them on the evening following the offenses.

         Ms. Tanner testified that during the afternoon of August 16, 2011, Mr. Jones helped the Defendant repair the Defendant's mother's vehicle at the Defendant's home. Ms. Tanner remained on the porch and did not hear any conversations between the Defendant and Mr. Jones. Mr. Jones asked the Defendant and Ms. Tanner to take him back to his apartment and stated that on the way, they could stop somewhere to obtain tools to use in repairing the vehicle later. The Defendant drove the Explorer; Ms. Tanner sat in the front passenger seat; and Mr. Jones sat behind her. They first stopped at a convenience store where Mr. Jones removed the tags from the Explorer and replaced them with temporary tags while the Defendant was inside the store. They then went to the victims' home.

         Ms. Tanner testified that she had not been the victims' home previously and that she believed the purpose of the visit was to retrieve tools. Mr. Jones exited the Explorer and entered the house through the front door while the Defendant and Ms. Tanner remained inside the vehicle. The Defendant asked Ms. Tanner to switch seats with him because she usually drove the vehicle. Mr. Jones then came out of the house through either the side door or the back door and motioned for them to enter the house. Ms. Tanner and the Defendant followed Mr. Jones inside the victims' house, and Ms. Tanner did not recall the Defendant saying anything to her as they were entering the house.

         Ms. Tanner testified that the Defendant and Mr. Jones walked toward the kitchen while she searched for a bathroom so that she could "shoot up" pills. While in the bathroom, she heard a gurgling noise coming from the next bedroom. She went into the bedroom, where she saw Mrs. Marsh lying on the floor with a head injury. Ms. Tanner told Mrs. Marsh that she would get help. Mr. Jones then entered the bedroom, followed by the Defendant, and Mr. Jones hit Mrs. Marsh "again." Mr. Jones gave a pillowcase to Ms. Tanner and instructed her to put everything in a nearby drawer into the pillowcase. Mr. Jones and the Defendant then left the room.

         Ms. Tanner put papers and pill bottles from the drawer into the pillowcase, set the pillowcase on the bed, and left the room. She saw Mr. Marsh come around the corner. He was disoriented and bleeding from a head injury. Mr. Jones came up behind Mr. Marsh and began hitting him "again." Ms. Tanner did not see the Defendant at that time. Ms. Tanner turned away, and when she turned back around, she saw Mr. Jones cover Mr. Marsh with a blanket while the Defendant stood beside Mr. Jones.

         Ms. Tanner stated she left the house and got into the driver's seat of the Explorer. The Defendant then came out of the house, followed by Mr. Jones. Mr. Jones instructed her to drive through the yard and to his apartment, and she complied. While en route, Mr. Jones stated that he had left a purse and a hammer inside the house.

         Ms. Tanner said that she did not recall carrying any property out of the house or seeing the Defendant or Mr. Jones carrying any property out of the house. She stated that a safe and jewelry were removed from the home but that she did not recall who removed them. She later testified that the Defendant carried the safe out of the house and placed it in the vehicle. While at Mr. Jones's apartment, the Defendant and Mr. Jones used a tire iron to open the safe, and the Defendant cut his finger as a result. Ms. Tanner only recalled the safe containing title papers. Mr. Jones instructed the Defendant and Ms. Tanner to throw the safe into a nearby pond. Mr. Jones also instructed Ms. Tanner to take the jewelry with her so they could pawn it later.

         Ms. Tanner denied seeing the shotgun until she was arrested and stated that she did not see who removed the shotgun from the victims' house. She testified that on the day following the offenses, she learned that once she and the Defendant returned home after the offenses, the Defendant removed the shotgun from their vehicle and hid it underneath a broken-down Winnebago in the backyard. The Defendant also removed the safe that they had opened, as well as a second safe taken from the victims' house, and placed them on the back porch. Ms. Tanner and the Defendant then went to a grocery store where they purchased various items, including bandages for the Defendant's finger and bleach to clean the blood off one of the safes. The State presented the receipt for the purchases that was dated August 16, 2011, at 10:34 p.m., and a video recording of the Defendant and Ms. Tanner at the grocery store. They returned home, cleaned the safe, bandaged the Defendant's finger, and went to bed.

         The following day, the Defendant and Ms. Tanner placed the safes into a dumpster, and Ms. Tanner threw away jewelry boxes that had contained Mrs. Marsh's jewelry. Ms. Tanner did not recall what she did with the jewelry. The Defendant retrieved the shotgun from underneath the Winnebago, told Ms. Tanner that they were selling the shotgun to a friend, and placed it in the back of their vehicle. While en route to sell the shotgun, they noticed a police officer in a vehicle behind them, and the Defendant instructed Ms. Tanner, who was driving, to go faster. Ms. Tanner drove into a parking lot where she and the Defendant were arrested. Ms. Tanner testified that she initially lied to the police when she spoke to them because she did not want to get into trouble. After she was questioned further, she gave a statement to the police.

         On cross-examination, Ms. Tanner agreed that when she first spoke to the police following her arrest, she did not realize that she could be charged with the offenses and did not believe she had done anything wrong. She maintained that she initially lied to the police because she was afraid and that Mr. Jones had done something to cause her to be frightened. She stated that she was "high" when she spoke to the police and when the offenses occurred and that she began taking drugs on the day of the offenses "[a]s soon as [she] got up." She said she had a strong opiate addiction at the time of the offenses. She admitted having pills in her pocket when she entered the victims' home and planning to "shoot up" the pills while in the home. She said she did not want to "shoot up" in the Defendant's presence because he did not approve of it. While in custody, Ms. Tanner led her family to believe that she was pregnant even though she was not.

         Ms. Tanner testified that Mr. Jones did not tell her or the Defendant why he wanted to go to the victims' house. She stated that the green Explorer had a red door and agreed it was odd to change the tags on the Explorer given its unique appearance. She acknowledged that she did not know what Mr. Jones was going to do until she saw him strike Mr. Marsh and that Mr. Jones, not the Defendant, gave her instructions. Ms. Tanner testified that Mr. Jones was angry at her for leaving the pillow case in the victims' house, and she agreed that it was Mr. Jones's idea to dispose of the property.

         Ms. Tanner testified that at the time of the offenses, the Defendant was enrolled in a technology school and that he was at school until 2:30 p.m. on the day after the offenses. Later that day, the Defendant and one of his friends from school worked on the Defendant's mother's car. Ms. Tanner was unaware of anyone other than Mr. Jones helping the Defendant in repairing the car on the day of the offenses.

         Ms. Tanner acknowledged that she was facing a sentence of 102 years on the original charges and that based upon her agreement with the State, she was eligible for parole in 2018. She also acknowledged that when she received the offer from the State, she was charged in unrelated cases with criminal impersonation, possession of drug paraphernalia, simple possession of drugs, shoplifting, theft, and multiple worthless check charges. She admitted that all of the charges were dismissed and that the dismissals were a benefit received as a result of her negotiations with the State. On redirect examination, Ms. Tanner testified that she has previously been denied parole and that she did not know whether she would be granted parole in 2018. She said she was testifying so that the victims' families could obtain "some closure."

         Officer Philip Jinks of the Knoxville Police Department assisted in the search for the Defendant and Ms. Tanner following the offenses. Officers were searching for a Ford Explorer with a passenger door that was a different color than the rest of the vehicle. Officer Jinks testified that he began watching the home of the Defendant and Ms. Tanner after he saw the Explorer parked there. A few minutes later, he saw two people who matched the descriptions of the Defendant and Ms. Tanner exit the house and get into the Explorer. Officer Jinks was in an unmarked car, and he requested a marked car to assist in a traffic stop. Officer Jinks followed the Explorer to the parking lot of a shopping center. The marked unit then pulled behind the Explorer with its blue lights activated. Officer Jinks looked in the back of the Explorer and saw what appeared to be a shotgun partially covered with a blanket. He notified other officers that a gun was inside the vehicle. The Defendant and Ms. Tanner were transported to the police station, and the vehicle was towed to an impound lot.

         Officers executed a search warrant of the Explorer and found a Remington Wingmaster Model 870 12-gauge shotgun in the backseat. Mr. Lanteri testified that he gave the shotgun to Mr. Marsh after Mr. Marsh loaned him money. The Defendant's fingerprints were found on the shotgun. Officers also executed a search warrant at the home of the Defendant and Ms. Tanner and located jewelry boxes and jewelry, which were identified at trial as belonging to Mrs. Marsh. Officers executed a search warrant of Mr. Jones's apartment and searched a nearby dumpster, and they recovered clothing, shoes, and two containers of Clorox from the dumpster.

         TBI Special Agent Laura Hodge, who the trial court accepted as an expert in microanalysis, tested various samples from the victims' home, the Defendant's Explorer, clothing found at Mr. Jones's apartment, and clothing found in the dumpster for accelerants. Testing of samples from the back door and the hallway of the victims' home revealed the presence of an isoparaffin product, an ignitable liquid found in some charcoal starters, copier fluids, aviation gasolines, lamp oils, insecticides, polishes, and camping fuels. Testing of a white bottle from the driver's floor of the Defendant's Explorer and a yellow left Puma shoe recovered from the dumpster revealed the presence of a medium petroleum distillate, an ignitable liquid found in some mineral spirits, paint thinners, charcoal starters, dry cleaning solvents, torch fuels, insecticides, polishes, and lamp oils.

         Special Agent Proctor examined a pair of jeans found in the dumpster and stated that presumptive testing indicated the presence of blood. One of the stains on the jeans had a DNA profile of a mixture of genetic material with Mr. Marsh as the major contributor and Mr. Jones as the minor contributor at six locations. The remaining locations were inconclusive due to insufficient or degraded DNA. Testing of the waistband of the jeans for touch DNA revealed a partial profile that was consistent with Mr. Jones's profile at two locations. Special Agent Keith Proctor testified that the results were consistent with Mr. Jones's wearing the jeans at some point. Testing of a right Puma shoe recovered from the dumpster revealed a DNA profile containing a mixture of genetic material from at least two individuals with Mr. Jones as the major contributor. Special Agent Proctor stated that the results of the testing were consistent with Mr. Jones's wearing the shoe at some point.

         Dr. Christopher Lochmuller, the Chief Deputy Medical Examiner for Knox County, was accepted by the trial court as an expert in forensic pathology, anatomic pathology, and clinical pathology. He performed the autopsies of both victims. He testified that Mr. Marsh sustained twelve blows to his head. One blow resulted in a depressed skull fracture on the top left side of Mr. Marsh's head, and another blow on the left side of his forehead resulted in a complex fracture that spread across the skull and intersected with the depressed skull fracture. Dr. Lochmuller stated that the blow resulting in the depressed skull fracture occurred before the blow to the forehead. Dr. Lochmuller was unable to determine the sequence in which the other blows occurred. Mr. Marsh had hemorrhaging overlying his brain and bruising of his brain. Mr. Marsh also sustained an injury to the left side of his neck and had defensive wounds on his right hand and right forearm.

          Dr. Lochmuller testified that Mr. Marsh inhaled soot from his nose and mouth and into his lungs and had a "substantially high level" of carbon monoxide in his blood. Dr. Lochmuller determined that not only was Mr. Marsh alive at the time of the fire, the level of carbon monoxide in his blood was at such a level that it was "a significant contribution to his death." Dr. Lochmuller testified that the injury to Mr. Marsh's head was independently fatal and that the extent of his carbon monoxide exposure "by itself could be lethal." Dr. Lochmuller concluded that Mr. Marsh's death was the result of blunt force injuries and carbon monoxide inhalation and that his manner of death was homicide.

         Dr. Lochmuller testified that Mrs. Marsh sustained five separate blows to her head, one to the back of her head and four to her left temple. The blows of her left temple resulted in a large depressed skull fracture, and the blow to the back of her head resulted in a fracture that traveled to and stopped at her depressed skull fracture. As a result, Dr. Lochmuller determined that Mrs. Marsh received the blows to her left temple before she was struck on the back of her head. There was hemorrhaging overlying her brain and bruising on her brain.

         Mrs. Marsh had extensive burns covering most of her body. She also had inhaled and swallowed soot and had an "elevated" level of carbon monoxide in her blood. Dr. Lochmuller stated that Mrs. Marsh's carbon monoxide level was not as high as Mr. Marsh's level but that she had a more severe head injury. Dr. Lochmuller explained that Mrs. Marsh's head injury caused her to die more quickly than Mr. Marsh but that the carbon monoxide still contributed to her death. Dr. Lochmuller concluded that Mrs. Marsh's death was the result of blunt force injuries and carbon monoxide inhalation and that her manner of death was homicide.

         Dr. Lochmuller testified that the flat end of the roofing hatchet and the flat face of the claw hammer found near Mrs. Marsh's body were consistant with the injuries of both victims. He could not determine the positions of the victims when they received the injuries.

         The parties stipulated that the Defendant had "a previous felony conviction consistent with Tennessee Code Annotated [section] 39-17-1307(b)(1)(A)." The State then rested its case.

         The defense sought to call Mr. Jones as a witness, but he refused to testify. The trial court found that he was unavailable, and his testimony from the Defendant's prior trial, except for the portions of his prior testimony that this court had concluded on direct appeal to be inadmissible, was read to the jury.

          Mr. Jones testified that he had pled guilty to the charges related to the murders. He stated that he had known Ms. Tanner for six or seven months at the time of the offenses and that he saw her three or four times a week, during which they would inject pills together. The Defendant knew that Ms. Tanner was injecting pills but did not approve of it. The ...

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