Court of Criminal Appeals of Tennessee, Knoxville
Session May 30, 2019
from the Criminal Court for Knox County No. 98837B G. Scott
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
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed in Part and Reversed in Part; Case
D. Stone, Knoxville, Tennessee, for the appellant, Benjamin
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
Everett Williams, P.J., delivered the opinion of the court,
in which Robert W. Wedemeyer and Robert L. Holloway, Jr.,
EVERETT WILLIAMS, PRESIDING JUDGE
AND PROCEDURAL BACKGROUND
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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
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
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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
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
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.
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
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.
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
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
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.
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
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.
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