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Posted by: Landry Butler on Nov 8, 2016

Head Comment: With Concurring and Dissenting Opinion by Woodall

Court: TN Court of Criminal Appeals

Attorneys 1:

Brittney S. Hollis and Rob McKinney, Nashville, Tennessee, for the appellant, Randall T. Beaty.

Attorneys 2:

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Lawrence Ray Whitley, District Attorney General; and Thomas Boone Dean and Jayson Criddle, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): HOLLOWAY

Defendant, Randall T. Beaty, was indicted for first degree felony murder and aggravated child abuse. After a jury trial, he was convicted of reckless homicide and aggravated assault, which were charged to the jury as lesser[-]included offenses. He received consecutive sentences of four years for Class D felony reckless homicide and six years for Class C felony aggravated assault, for an effective ten-year sentence to be served in the Department of Correction. On appeal, Defendant argued: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred by allowing Detective Bachman to testify in violation of the rule of sequestration; (3) that the trial court erred by excluding a proffer by Amber Peveler; (4) that the trial court erred in failing to merge his convictions on double jeopardy grounds; and (5) that the trial court erred by ordering consecutive sentencing. As to the alleged violation of the rule of sequestration, we held, pursuant to State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010), that the State had the right under Tennessee Rule of Evidence 615 to designate an investigating officer as exempt from sequestration and the designated investigating officer can remain in the courtroom during the testimony of other witnesses. We further recognized, as a matter of plain error, that the jury‘s verdict for aggravated assault failed to specify the mens rea with which the Defendant acted, and a majority of the panel concluded that the Defendant's judgment of conviction for knowing aggravated assault, a Class C felony, should be modified to reflect a conviction for reckless aggravated assault, a Class D felony. We, therefore, modified the conviction in Count 2 to a Class D felony reckless aggravated assault and modified Defendant's sentence in Count 2 to four years' incarceration to be served consecutively to the four year sentence for reckless homicide. Finally, we concluded that the conviction for reckless aggravated assault did not merge with the conviction for reckless homicide and affirmed all other aspects of Defendant's convictions. On October 19, 2016, the Tennessee Supreme Court granted Defendant's application for permission to appeal and remanded the case to this court for reconsideration in light of the supreme court's recent opinion in State v. Howard, No. E2014-01510-SC-R11-CD, __ S.W.3d __, 2016 WL 5933430 (Tenn. Oct. 12, 2016). Upon reconsideration in light of Howard, we conclude that Defendant's conviction for reckless aggravated assault must merge with his conviction for reckless homicide. The judgments of the trial court are affirmed as modified, and the case is remanded for entry of amended judgments of conviction.