State of Tennessee v. Sean Farris ( 2017 )

07/12/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs at Knoxville May 17, 2017
STATE OF TENNESSEE v. SEAN FARRIS
Appeal from the Criminal Court for Shelby County
No. 15-01058 J. Robert Carter, Jr., Judge
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No. W2016-01778-CCA-R3-CD
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A jury convicted the Defendant, Sean Farris, of aggravated robbery, and the trial court
sentenced the Defendant to serve ten years and six months in the Tennessee Department
of Correction. On appeal, the Defendant asserts that: (1) the trial court improperly
allowed the admission of prior convictions; (2) the trial court unreasonably limited cross-
examination of the victim; (3) the evidence is insufficient to sustain his conviction; and
(4) his sentence is excessive. We affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.
John R. Holton, Memphis, Tennessee, for the appellant, Sean Farris.
Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Amy P. Weirich, District Attorney General; Dru Carpenter and Gavin
Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
This case arises from the victim being held at gunpoint and robbed of his keys,
laptop, and wallet. A Shelby County grand jury indicted the Defendant and his co-
defendant, Darryl Goodman, for aggravated robbery. At a trial on the charges, the parties
presented the following evidence: The victim testified that on August 30, 2014, he lived
at the Grahamwood Apartments on Summer Avenue in Memphis, Tennessee. On that
date, the victim arrived home from church with his wife and daughter after dark, between
7:30 and 8:00 p.m. He parked his red Ford Expedition next to a light brown or cream-
colored Chevrolet Avalanche that was facing the street. The victim noticed that there
were three people inside the vehicle: one in the front passenger seat and two in the back
seat. He recalled that there were also some men standing outside of the Chevrolet
Avalanche.
The victim testified that, after parking his truck, he and his wife and daughter,
exited his truck, and walked toward their apartment. As he was walking to his apartment,
one of the men that had been seated in the back seat of the Avalanche approached him
and began asking questions about the apartment complex office. The victim turned
toward the man and saw him pull a black semi-automatic gun from his waistband and
point it at the victim. The man demanded the victim’s laptop, wallet, and keys. The
victim described the key chain holding his keys as having a red heart and a hat on the key
ring. The victim testified that he was scared as he handed the items over to the man. He
said that, after he turned over the items, the man ordered him to “get out.” The victim
began walking away and, when he looked back over his shoulder, he saw the man getting
into the Avalanche.
The victim testified that he went to his apartment and asked his wife to call the
police. When the police arrived, he described the Avalanche and events of the evening to
the police. Later, he met with detectives at the police station and identified the Defendant
from a photographic lineup. The victim stated that he saw the Avalanche at his apartment
complex again three days after the robbery on September 2, 2014, at 9:30 or 10:00 a.m.
The victim confirmed that Detective Perea returned his keys to him. He agreed that none
of the other stolen items were returned and noted that he had both United States currency
and Mexican currency in his wallet at the time it was stolen.
The victim identified the Defendant in court as the man that had pointed the gun at
him and taken his items. The victim stated that the Defendant’s hair was longer at the
time of trial than it had been at the time of the offense.
Kory Payne, a Memphis Police Department (“MPD”) officer, testified that he
responded to a report of a robbery on August 30, 2014, at Grahamwood Apartments. He
met with the victim, who spoke Spanish. The victim’s wife translated for the victim.
Officer Payne described the victim’s demeanor as “very upset, disoriented,” and
“extremely bothered.” The victim, through his wife, described the vehicle he had seen
the perpetrator leave in, a “tannish-gray” Chevy Avalanche, and Officer Kayne relayed
the description to other officers via police radio.
Malcolm Smith, an MPD police officer, testified that, on September 2, 2014, he
located a vehicle matching the description provided by the victim. The vehicle was
backed into a driveway of a residence located on Breedlove Street. As Officer Smith
observed the vehicle, three individuals exited the residence and got into the vehicle. The
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police later stopped the vehicle and took all three individuals into custody. One of the
individuals, the driver, was the co-defendant in this case.
Sam Blue, an MPD officer, testified that on September 2, 2014, he searched the
Avalanche associated with this case. While doing so, Officer Blue found a .380 caliber
handgun under the right rear passenger seat of the vehicle and a .22 caliber revolver on
the right side of the driver’s seat between the console and “the floor of the driver’s seat.”
Jason Gallardo, a former MPD officer,1 testified that, on September 28, 2014, he
responded to a call about a “suspicious person” at Macon Pointe Apartments in Memphis,
Tennessee. He spoke with a man who provided a false name. Upon further investigation,
Officer Gallardo confirmed that the man was the Defendant and learned that there was a
warrant for the Defendant’s arrest for an aggravated robbery. While detaining the
Defendant, Officer Gallardo found Mexican currency in the Defendant’s possession.
Officer Gallardo stated that the currency held no significance to him at the time, so he
returned the currency to the Defendant. Later, during transport of the Defendant, Officer
Gallardo was unable to find the Mexican currency on the Defendant.
David Payment, an MPD officer, testified that, on September 2, 2014, he reported
to a residence on Breedlove Street with a metal detector to look for evidence in the area
surrounding the residence. When he arrived, the owner was outside and gave consent for
Officer Payment to search the backyard of the residence located next door to the
residence where the Avalanche had been located. During the search, Officer Payment
found a set of keys with “a silver colored hat and a red tag” located approximately ten
feet from the fence separating the two properties.
Jesus Perea, an MPD detective, testified that, in August 2014, he investigated the
aggravated robbery at the Grahamwood Apartments. On September 15, 2014, Detective
Perea spoke with the victim and showed him a photographic line-up containing the
Defendant’s photograph. The victim pointed out, circled, initialed and then signed the
booking photo of the Defendant.
Detective Perea testified that, during the course of the investigation, he became
aware of information that indicated there might have been “some sort of evidence”
disposed of near a residence on Breedlove Street. The owner was the co-defendant’s
sister, Courtney Amos. Ms. Amos provided verbal and written consent to search around
her residence. Officers also obtained permission from adjacent properties to search the
1
Officer Gallardo testified that, at the time of trial, he was employed with the Austin,
Texas police department.
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backyards. The victim’s keys, which were taken during the aggravated robbery, were
recovered in the back yard next to Ms. Amos’s property.
The Defendant testified that, on August 30, 2014, he was a passenger in his co-
defendant’s vehicle. He had agreed to give his co-defendant “gas money” for a ride
home. The Defendant estimated that it was around 8:00 p.m. when he got into the
Avalanche. At the time, Alicia Parker was driving the Avalanche, the co-defendant was
seated in the front passenger seat, and “Tay-Tay” was seated with the Defendant in the
backseat. Ms. Parker drove the Avalanche down the street to a Texaco gas station and
got gas. After getting the gas, the Defendant believed he would be taken home but,
instead, the co-defendant told the Defendant that he was going to make a “little stop” to
get marijuana first. The group drove to an apartment complex “right off” Summer
Avenue. Ms. Parker backed the Avalanche into a parking space, and the co-defendant
and “Tay-Tay” exited the vehicle.
The Defendant testified that he spoke with Ms. Parker while waiting for the co-
defendant to return. About ten minutes later, the co-defendant and “Tay-Tay” returned
and got back into the Avalanche. The Defendant then observed a red Expedition pull into
the parking space next to the Avalanche. The co-defendant stated that “the man” did not
answer the door and instructed Ms. Parker to call “the man.” As he sat there, the
Defendant noticed a woman and children get out of the Expedition and walk toward an
apartment building while a man remained seated in the Expedition. The Defendant
recalled that the co-defendant then finished his phone call and said he was going to go
back and knock on the door. The co-defendant exited the Avalanche and the victim, who
had been seated in the Expedition, walked toward an apartment building. The two men
were in close proximity to one another and began talking.
The Defendant testified that the co-defendant raised his right arm, and the victim
handed the co-defendant a black bag. The Defendant said that he did not see a gun but
that he could clearly see the co-defendant’s arm extended. The co-defendant then ran
back to the Avalanche with a black bag in one hand and a white revolver in the other.
The Defendant said that he was “hysterical” and that he began cursing and yelling at the
co-defendant. The two exchanged words and when Ms. Parker had driven a short way
down the road away from the apartments, the Defendant demanded that he be let out of
the Avalanche. Ms. Parker complied, and the Defendant walked to a hotel where he
stayed for the night
The Defendant testified that at the time of this offense he weighed approximately
twenty pounds less than he did at trial.
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On cross-examination, the Defendant confirmed that in 2010, he was convicted of
five counts of burglary of a motor vehicle and one count of theft over $1000. He further
confirmed that he had a 2014 conviction for criminal impersonation.
After hearing the evidence, the jury convicted the Defendant of aggravated
robbery. At a subsequent sentencing hearing, the State submitted a victim impact
statement addressing the fear and broken security that the victim and his family now felt
following the aggravated robbery. The Defendant made a statement in allocution
apologizing to the victim and asking the court to consider the programs he has completed
while in incarceration. He asked to be sentenced to Community Corrections.
The trial court stated that the Defendant was convicted of a Class B felony and
was a Range I, standard offender with a sentencing range of eight to twelve years. In
determining a sentence, the trial court made the following findings:
I do find enhancement number one is a very important factor. [The
Defendant] has a significant criminal history over and above that necessary
to make him range one. And like I said, in fact, he’s got a variety of felony
[and] misdemeanor charges that I have to give great weight to.
Enhancement factor two that he was the leader in the commission of an
offense involving two or more actors, I’m not sure after hearing the proof
whether I think [the Defendant] was the leade[r] or whether [the co-
defendant] was the leader, or whether it was a joint adventure. . . . So, I’m
not accrediting that factor. . . . [T]he State recommends number 17 which
is basically a hate crime allegation. And I do find - - I think I can look at
the entire record in this case and see that [the Defendant] is charged with
his codefendants with targeting a specific group and frankly, they were
Hispanics. And my honest feeling on this is that these people were targeted
not because they were Hispanic, per se, not because of some prejudice
against that nationality, but because of the practicality of the language
difficulty and the citizenship issues that many of the people in that
community face makes them particularly vulnerable. . . . [S]o I do give that
some weight, but not the same weight that I would give in the weight of
racially, or religiously, or sexual orientation motivated crimes. . . . In
looking at the mitigation, I’m recalling the testimony of [the Defendant] at
the trial in which he basically did not accept any responsibility and blamed
[the co-defendant] for the entire matter. I think, if I remember correctly he
said it was the worst night of his life . . . . Today in his allocution he seems
to accept a bit more responsibility asking for his apology [to] be conveyed
to the victim and to the extent that I don’t know how much affect that is, I
have to give him some credit. He didn’t have to say it but he did, so I do. . .
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. I think we may have heard he has attended some classes. . . . So, I have to
give some credit for the fact somebody would use their time wisely and
while they’re in custody. . . . And so while his criminal history would
scream for me to give him the maximum, I’m not going to do that. I’m
going to hope that he’s honest when he says he hopes to do a rehabilitation
and I’m going to sentence him to 10 years and six months.
It is from this judgment that the Defendant appeals.
II. Analysis
On appeal, the Defendant asserts that: (1) the trial court improperly allowed the
admission of prior convictions; (2) the trial court unreasonably limited cross-examination
of the victim; (3) the evidence is insufficient to sustain his conviction; and (4) his
sentence is excessive.
A. Admission of Prior Convictions
The Defendant contends that the trial court erred when it allowed the State to use
for impeachment purposes the Defendant’s prior convictions for attempt to alter a license
tag and for theft under five hundred dollars. The State contends that the trial court
properly allowed the Defendant’s prior convictions into evidence for impeachment
purposes. We agree with the State.
Tennessee Rule of Evidence 609(a) provides that a witness may be impeached by
evidence of a prior conviction. However, the prior conviction must be a felony
conviction or a conviction of an offense involving dishonesty or a false statement. Tenn.
R. Evid. 609(a)(2). Upon request, the trial court must determine that the conviction’s
probative value on credibility outweighs its unfair prejudicial effect on the substantive
issues. Id. The rule also mandates that the State give reasonable written notice prior to
trial of the particular convictions it intends to use to impeach the accused. Tenn. R. Evid.
609(a)(3). The Tennessee Supreme Court has noted that the following two criteria are
especially relevant in balancing a prior conviction’s probative value and unfair
prejudicial effect: (1) the impeaching conviction’s relevance as to credibility; and (2) the
impeaching conviction’s similarity to the charged offense. State v. Waller, 118 S.W.3d
368, 371 (Tenn. 2003).
When an impeaching conviction is substantially similar to the charged offense, a
danger exists that jurors will improperly consider the impeaching conviction as evidence
of the propensity of the defendant to commit the crime. Id. Accordingly, the unfair
prejudicial effect of an impeaching conviction on the substantive issues greatly increases
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if the conviction is substantially similar to the charged offense. Id. Under these
circumstances, a trial court should carefully balance the impeaching conviction’s
relevance with regard to credibility against its unfair prejudicial effect on substantive
issues. Id.
Evidence of a prior conviction that is substantially similar to the charged offense is
not, however, per se inadmissible for impeachment purposes. Id. “The standard is not
whether there is any prejudice by allowing the State to use the prior conviction for
impeachment, but whether the possible prejudice is outweighed by the probative value of
the evidence as to the defendant’s credibility as a witness.” State v. Roberts, 943 S.W.2d
403, 408 (Tenn. Crim. App. 1996), overruled on other grounds by State v. Ralph, 6
S.W.3d 251 (Tenn. 1999). The courts of this State have repeatedly held that robbery and
theft are crimes of dishonesty, “thus lending greater weight to their probative value
regarding credibility.” State v. Lamario Sumner, No. W2005-00122-CCA-R3-CD, 2006
WL 44377, at *5 (Tenn. Crim. App., at Jackson, Jan. 6, 2006) (quoting State v. Blevins,
968 S.W.2d 888, 893 (Tenn. Crim. App. 1997)), perm. app. denied (Tenn. May 30,
2006). On appellate review, the trial court’s rulings on the admissibility of prior
convictions for impeachment purposes are subject to reversal only for an abuse of
discretion. State v. Thompson, 36 S.W.3d 102, 110 (Tenn. Crim. App. 2000). A trial
court abuses its discretion when it applies an incorrect legal standard or reaches a
decision which stands against logic or reasoning that causes an injustice to the
complaining party. Waller, 118 S.W.3d at 371.
In the present case, the State properly filed written notice before the trial of its
intent to question the Defendant about his eleven prior convictions. Before the Defendant
testified, a jury-out hearing was held to determine whether the Defendant’s prior
convictions would be admissible to impeach the Defendant’s testimony. The trial court
held that the Defendant’s credibility was at issue in this case and that some of his prior
convictions were admissible as crimes of dishonesty. The trial court also excluded some
of the submitted convictions based upon the fact that they were misdemeanors with no
relationship to dishonesty.
In the case under submission, the trial court did not abuse its discretion by ruling
that the Defendant’s prior convictions were admissible. The trial court determined, and
we agree, that the Defendant’s credibility was at issue. The Defendant denied the
accusations against him and presented an alternative theory as to his presence at the scene
of the aggravated robbery. As previously stated, theft is considered a crime of dishonesty
and therefore highly probative as to the Defendant’s credibility. Automobile burglary
“involves theft,” as the trial court noted, and thus indicates a similar relationship to the
Defendant’s credibility. See State v. Tune, 872 S.W.2d 922, 927 (Tenn. Crim. App.
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1993) (holding burglary is probative of credibility because it is a crime involving false
dealing and dishonesty). We also agree with the trial court that the Defendant’s
misdemeanor conviction for criminal impersonation is a crime of dishonesty. Criminal
impersonation, by statute, requires a false statement. T.C.A. §39-16-301(a)(2014); See
also, State v. Norman Branch, No. W2013-00964-CCA-R3-CD, 2014 WL 3744322 at *6
(Tenn. Crim. App, at Jackson, July 28, 2014) perm. app. denied (Tenn. Dec. 19, 2014).
Accordingly, we conclude that the Defendant’s prior convictions were highly probative
as to the Defendant’s credibility, and the probative value of the testimony was not
outweighed by the unfair prejudice.
The trial court also considered the similarity of the crimes. Ultimately, it
distinguished the aggravated robbery, a “crime of violence,” from the Defendant’s prior
convictions for automobile burglary, a “property crime.” It further noted that it would
instruct the jury to only consider the convictions for purposes of credibility to mitigate
any risk of prejudice. Under all the circumstances, we discern no abuse of discretion by
the trial court in concluding that the State could impeach the Defendant with prior crimes
of dishonesty. Accordingly, the Defendant is entitled to not relief on this basis.
B. Cross-Examination of Victim
The Defendant asserts that the trial court erred when it limited his cross-
examination of the victim about the suspect’s description. The State responds that the
trial court properly exercised its discretion in limiting the cross-examination. We agree
with the State.
A defendant’s constitutional right to confront the witnesses against him includes
the right to conduct meaningful cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39,
51 (1987); State v. Brown, 29 S.W.3d 427, 431 (Tenn. 2000); State v. Middlebrooks, 840
S.W.2d 317, 332 (Tenn. 1992). Denial of a defendant’s right to effective cross-
examination is “‘constitutional error of the first magnitude’” and may violate the
defendant’s right to a fair trial. State v. Hill, 598 S.W.2d 815, 819 (Tenn. Crim. App.
1980) (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)). “The propriety, scope,
manner and control of the cross-examination of witnesses, however, rests within the
sound discretion of the trial court.” State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim.
App. 1995); see Coffee v. State, 216 S.W.2d 702, 703 (Tenn. 1948). Furthermore, “a
defendant’s right to confrontation does not preclude a trial court from imposing limits
upon cross-examination that take into account such factors as harassment, prejudice,
issue confrontation, witness safety, or merely repetitive or marginally relevant
interrogation.” State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. App. 1994). This court
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will not disturb the limits that a trial court has placed upon cross-examination unless the
court has unreasonably restricted the right. Dishman, 915 S.W.2d at 463; see State v.
Fowler, 373 S.W.2d 460, 466 (Tenn. 1963).
The Tennessee Rules of Evidence define the scope of cross-examination. Rule
611(b) says, “A witness may be cross-examined on any matter relevant to any issue in the
case, including credibility, except as provided in paragraph (c)(2) of this rule,” with
paragraph (c)(2) limiting the scope of cross-examination when a party calls an adverse
witness. Tenn. R. Evid. 611(b). In addition, Rule 616 states, “A party may offer
evidence by cross-examination, extrinsic evidence, or both, that a witness is biased in
favor of or prejudiced against a party or another witness.” Tenn. R. Evid. 616. “A
defendant has the right to examine witnesses to impeach their credibility or to establish
that the witnesses are biased.” State v. Sayles, 49 S.W.3d 275, 279 (Tenn. 2001).
The right to cross-examine a witness is also limited to questions that are designed
to elicit relevant evidence. Tenn. R. Evid. 401, 402 (providing that “evidence which is
not relevant is not admissible”); see Monts v. State, 379 S.W.2d 34, 40 (Tenn. 1964); see
also State v. Adkisson, 899 S.W.2d 626, 645 (Tenn. Crim. App. 1994); State v. Rhoden,
739 S.W.2d 6, 11 (Tenn. Crim. App. 1987); State v. Braggs, 604 S.W.2d 883, 886 (Tenn.
Crim. App. 1980); Taylor v. State, 551 S.W.2d 331, 335 (Tenn. Crim. App. 1976). The
term “relevant evidence” is defined as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. In
short, evidence is relevant if it tends to prove a material issue. Tenn. R. Evid. 401,
Advisory Comm’n Cmts. There are further limitations on the relevant evidence that a
defendant may elicit during cross-examination of a witness. Tennessee Rule of Evidence
403 states, “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” This court will not disturb the limits that a trial
court has placed upon cross-examination unless the trial court has unreasonably restricted
the right. State v. Wyrick, 62 S.W.3d 751, 770 (Tenn. Crim. App. 2001).
At trial, the victim described the robber as “not too fat” but as being on “the heavy
side.” When questioned about his statement to police following the robbery, that the
robber was “black, fat build, kind of tall in dark clothing,” the victim stated that he did
not remember his exact statement but, after reviewing the statement, the victim recalled
making that statement to police. Next, defense counsel asked if the victim was also asked
to describe in detail what happened just before, during, and just after this robbery
occurred. The State objected, and the trial court sustained the objection, finding that the
defense had not established a prior inconsistent statement as a basis for the admission of
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the victim’s other prior statements. Defense Counsel asked no further questions of the
witness. On direct examination, the Defendant testified that he weighed 170 pounds at
the time of the robbery.
After review, we do not conclude that the trial court unreasonably restricted the
Defendant’s right to cross-examination. The jury heard the victim describe the robber as
“not too fat” and “on the heavy side” as well as the victim’s affirmation that he described
the robber three days after the offense as having a “fat build.” The jury could then
determine whether the discrepancy was significant and the victim’s credibility in light of
the discrepancy. We agree that a victim is generally a crucial witness for the State and
evidence that would lead a jury to question a victim’s credibility is significant. The
Defendant, however, does not clearly identify what specific inconsistencies he sought to
explore in front of the jury or how the trial court’s ruling prohibited him from such. In
the record, defense counsel offered no argument in support of his line of questioning and
there was no offer of proof for this court to review. Likewise, in the Defendant’s brief
there is no identification of what inconsistencies there were with which to impeach the
victim. Therefore, based upon our review of the record before us, we find that the trial
court did not abuse its discretion. The Defendant is not entitled to relief.
C. Sufficiency of the Evidence
The Defendant claims that the verdict is against the weight of the evidence. He
argues that the victim’s testimony as the sole eyewitness against the Defendant is
insufficient in light of the Defendant’s testimony that he was present but unaware and
totally uninvolved in the robbery. The State responds that sufficient evidence was
presented to support the jury’s verdict. We agree with the State.
When an accused challenges the sufficiency of the evidence, this Court’s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury.’” State v.
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Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).
In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of
the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.1973). The Tennessee Supreme
Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be
given to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest
legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and
legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of
guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000) (citations omitted).
A conviction for aggravated robbery, as relevant to this case, requires proof
beyond a reasonable doubt that the Defendant committed an “intentional or knowing theft
of property from the person of another by violence or putting the person in fear” and that
the robbery was “accomplished with a deadly weapon or by display of any article used or
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fashioned to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. §§
39-13-401(a), -402(a)(1) (2014).
The evidence presented at trial, viewed in the light most favorable to the State,
showed that the victim exited his vehicle and that the Defendant addressed him while he
was walking toward his apartment. When the victim turned to respond, the Defendant
brandished a weapon and demanded the victim’s personal items, which included Mexican
currency. The Defendant then got into the co-defendant’s Avalanche and left the area.
Three days later, the victim identified the Defendant in a photographic lineup as the
robber. At the time of the Defendant’s apprehension, police officers found Mexican
currency on his person. The Defendant admitted to being in the back seat of the
Avalanche when driving to the apartment complex where the robbery occurred and
leaving the apartment complex. The gun used in the robbery was later found in the back
seat of the Avalanche. The Defendant admitted his presence but explained that he was
unaware of and uninvolved in the robbery. The jury, by its verdict, accredited the
victim’s testimony. All questions involving the credibility of witnesses, the weight and
value to be given the evidence, and all factual issues are resolved by the trier of fact, not
the appellate courts. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).
The Defendant is not entitled to relief.
D. Sentence
The Defendant contends that the trial court erred when it sentenced him to more
than eight years, the minimum for his applicable range. He alleges that the trial court
misapplied an enhancement factor dealing with hate crimes and, therefore, improperly
increased his sentence. The State responds that, regardless of the misapplication of a
factor, the trial court did not abuse its discretion in ordering within range sentence. We
agree with the State.
In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law
and the impact on appellate review of sentencing decisions. The Tennessee Supreme
Court announced that “sentences imposed by the trial court within the appropriate
statutory range are to be reviewed under an abuse of discretion standard with a
‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682 (Tenn. 2012). A
finding of abuse of discretion “‘reflects that the trial court’s logic and reasoning was
improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001)
(quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of
discretion, the record must be void of any substantial evidence that would support the
trial court’s decision. Id. at 554-55; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978);
State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court
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should uphold the sentence “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court
sentences within the appropriate range and properly applies the purposes and principles
of the Sentencing Act, its decision will be granted a presumption of reasonableness. Id.
at 707.
In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant’s own behalf
about sentencing. See T.C.A. § 40-35-210 (2014); State v. Taylor, 63 S.W.3d 400, 411
(Tenn. Crim. App. 2001). The trial court must also consider the potential or lack of
potential for rehabilitation or treatment of the defendant in determining the sentence
alternative or length of a term to be imposed. T.C.A. § 40-35-103 (2014).
The Defendant was convicted of a Class B felony as a Range I, standard offender
with a sentencing range of eight to twelve years. The trial court applied two
enhancement factors: enhancement factor (1), the Defendant had “a previous history of
criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range,” and enhancement factor (17), the Defendant “intentionally selected
the person against whom the crime was committed or selected the property that was
damaged or otherwise affected by the crime, in whole or in part, because of the
defendant’s belief or perception regarding the race, religion, color, disability, sexual
orientation, national origin, ancestry or gender of that person.” T.C.A. § 40-35-114(1)
and (17). The trial court gave “great weight” to the Defendant’s criminal history and
“some weight” to the fact the victim was Hispanic.
Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See T.C.A. § 40-35-114 (2014); see
also Bise, 380 S.W .3d at 699 n. 33. We note that “a trial court’s weighing of various
mitigating and enhancement factors [is] left to the trial court’s sound discretion.” Carter,
254 S.W.3d at 345. In other words, “the trial court is free to select any sentence within
the applicable range so long as the length of the sentence is ‘consistent with the purposes
and principles of [the Sentencing Act].’” Id. at 343. A trial court’s “misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed from the 1989 Act, as amended in 2005.” Bise, 380 S.W .3d at
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706. “[Appellate Courts are] bound by a trial court’s decision as to the length of the
sentence imposed so long as it is imposed in a manner consistent with the purposes and
principles set out in sections -102 and -103 of the Sentencing Act.” State v. Carter, 254
S.W.3d 335, 343 (Tenn. 2008).
After review of the record, we conclude that the trial court did not abuse its
discretion when it sentenced the Defendant. Even were we to agree with the Defendant’s
contention that the trial court misapplied enhancement factor (17), the Defendant would
not be entitled to relief. The trial court found applicable enhancement factor (1), not
contested by the Defendant, leaving a more than adequate basis for enhancement.
Furthermore, as we earlier stated, misapplication of an enhancement or mitigating factor
alone does not invalidate the sentence.
Accordingly, we conclude that the trial court clearly stated its reasons for the
sentence imposed, and the Defendant’s sentence is within the appropriate range. It is
apparent that the trial court considered the purposes and principles of the Sentencing Act
and did not abuse its discretion. The Defendant is not entitled to relief.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s judgment.
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ROBERT W. WEDEMEYER, JUDGE
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