State of Tennessee v. Adarius Dewayne Garth ( 2017 )


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  •                                                                                        06/09/2017
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    Assigned on Briefs December 20, 2016
    STATE OF TENNESSEE v. ADARIUS DEWAYNE GARTH
    Appeal from the Criminal Court for Hamilton County
    No. 292042 Thomas C. Greenholtz, Judge
    ___________________________________
    No. E2016-00931-CCA-R3-CD
    ___________________________________
    Defendant, Adarius Dewayne Garth, was indicted by the Hamilton County Grand Jury for
    two counts of attempted first degree murder, domestic aggravated assault, aggravated
    assault, reckless endangerment, and employing a firearm during the commission of a
    dangerous felony. Defendant entered an “open” guilty plea to the lesser-included offense
    of reckless aggravated assault, and the remaining charges were dismissed on motion by
    the State. Following a sentencing hearing, the trial court sentenced Defendant to four
    years’ incarceration as a Range I offender. Defendant appeals the length and manner of
    service of his sentence. Following a careful review of the record, we affirm the judgment
    of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JAMES
    CURWOOD WITT, JR. and JOHN EVERETT WILLIAMS, JJ., joined.
    Steven E. Smith, District Public Defender; and Kevin L. Loper, Assistant Public
    Defender, Chattanooga, Tennessee, for the appellant, Adarius Dewayne Garth.
    Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; M.
    Neal Pinkston, District Attorney General; and Cameron Williams, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    Facts
    The State offered the following factual basis at Defendant’s plea submission
    hearing:
    Your Honor, if this case had gone to trial, the facts would have
    been as follows, that on or about March 17, 2014, here in Hamilton
    County, Tennessee, police were dispatched to a person shot at 3704 West
    Avenue. When they arrived and found Tanika Caldwell, she had been
    shot. She was laying [sic] in the kitchen. There were several witnesses
    there, including the defendant. Essentially all of the witnesses stated that
    there had been a car that had driven by and shots were fired into the
    home and Ms. Caldwell was struck. [Defendant] also[,] as one of the
    witnesses[,] indicated that to the police.
    There was a 911 call placed by [Defendant] in which he indicated
    that as well. That she had been shot and there had been a car that had
    driven by.
    As the investigation – Ms .Caldwell was taken to the hospital, she
    had a gunshot wound to her jaw. Apparently she was two months
    pregnant with the defendant’s child at the time of the shooting. She was
    released at a later date. The investigation continued at that point. They
    spoke with Ms. Caldwell. She indicated that she wasn’t really aware of
    what happened, that she just knew that she was shot. They re-
    interviewed some of the witnesses and one of the witnesses indicated
    that there had not been a drive-by shooting, that [Defendant] – that they
    heard a gunshot, looked in the kitchen, saw [Defendant] in the kitchen
    with a firearm, and [Defendant] had told this witness that he had better
    not say that he had done it, that he would take steps to make sure that
    they didn’t say that he had done it. There was no firearm ever recovered
    in the incident.
    They interviewed the victim again and she indicated that she saw
    [Defendant] standing beside her, that she saw [Defendant] point a gun at
    her and then fire the weapon. She did give testimony at a preliminary
    hearing and at that preliminary hearing her story changed a little bit
    again. She said she doesn’t know who – she said she didn’t know who
    shot her. That she was standing in the kitchen with two individuals, one
    of whom was [Defendant], and that the next thing she knew she had been
    shot and she was on the floor.
    [Defendant] was not taken into custody the night of the shooting.
    After the officers re-interviewed the witnesses they charged – they swore
    out warrants for [Defendant] and he was taken into custody about a
    month after that. He did give a statement to the police. It was recorded
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    after he waived his Miranda rights. He indicated that he did shoot Ms.
    Caldwell, that it was an accident. That she went outside, got a gun from
    the outside that she had found near the trash can, came in, that she
    handed him the gun and that while she was handing him the gun the gun
    went off and shot her in the jaw. That was the defendant’s statement. It
    doesn’t really fit with the proof. But the State has had limited
    cooperation from the victim in this case and also the witnesses. The
    State feels that there would be the possibility that Ms. Caldwell would be
    declared unavailable and that her prior sworn testimony would be
    introduced at trial. There’s no guarantee that that would happen, but that
    would be something that the State – a possibility for the State of
    Tennessee in that proof. And along with the defendant’s statement to the
    police after waiving his Miranda rights, the State feels that the
    disposition of reckless aggravated assault is appropriate. That the State
    probably could not meet its burden for attempted murder. So that’s the
    reason for the reduction.
    Sentencing hearing
    A presentence report was admitted as evidence at the sentencing hearing. The
    State also introduced without objection a recording of the 911 call, Defendant’s recorded
    statement to the police, the victim’s medical records, and an order revoking Defendant’s
    probation in a prior conviction.
    Taylor Walker, of the Chattanooga Police Department, was assigned to investigate
    the shooting. He responded to the victim’s residence, where the shooting occurred. The
    victim’s two young children were present, and the victim was pregnant with Defendant’s
    child at the time of the shooting. Officer Walker observed a large pool of blood on the
    far side of the kitchen that led to a hallway. He observed food items on the table, and it
    appeared that the victim had been preparing dinner when she was shot. Four witnesses,
    including Defendant, were transported to the “service center” to be interviewed.
    Officer Walker interviewed the victim at the hospital either on the night of the
    shooting or the following day. The victim was heavily sedated, and she could not speak
    due to the injury to her mouth. Officer Walker testified that there was stippling around
    the victim’s jaw area.
    The victim’s mother contacted Officer Walker, and they spoke several times.
    Nakita Jones was re-interviewed on the day after the shooting. Officer Walker also
    requested a forensic interview with the victim’s four-year-old child. The victim, her son,
    and the victim’s mother were present for the interview at the child advocacy center.
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    Officer Walker also interviewed the victim again at the child advocacy center. Based on
    those interviews, Officer Walker “took out warrants” for Defendant’s arrest, charging
    him with attempted first degree murder, aggravated domestic assault, reckless
    endangerment, and unlawful possession of a firearm. Defendant was arrested on April
    27, 2014.
    Officer Walker interviewed Defendant after his arrest. Defendant stated that he
    was standing between the kitchen and living room, and he heard two or three gunshots.
    He stated that he heard tires screech, and he looked over and saw that the victim had been
    shot. Officer Walker interviewed Defendant again on April 28, 2014. Defendant stated
    that he was in the kitchen with the victim. The victim took the trash outside, and she
    found a handgun outside. She brought the gun inside and handed it to Defendant.
    Defendant stated that the victim was holding the barrel, and when he grabbed the gun by
    the handle, it fired accidentally. Officer Walker testified that his investigation did not
    support either of Defendant’s statements.
    Kenneth Fairchild, an employee of Hamilton County Community Corrections,
    testified that the trial court ordered Defendant to wear a GPS monitor as a pretrial
    condition of bond, but that Defendant was not on house arrest. Defendant was ordered
    not to go within 500 feet of the victim’s home. On February 25, 2016, Mr. Fairchild filed
    a violation of the GPS conditions. Mr. Fairchild testified that Defendant failed to charge
    the battery and respond to notifications, and Defendant “repeatedly” failed to pay his
    GPS monitoring fees. Mr. Fairchild testified that he had “multiple” discussions with
    Defendant about charging the battery. In February, the battery had gone into “critical
    stage at least eight times and had gone into failure for not being charged four times.”
    Phil Lynch testified on behalf of Defendant. He testified that Defendant had been
    employed part-time at his business since August, 2015. Mr. Lynch testified that
    Defendant had “done a good job[,]” and he hoped to “get him back” as an employee. Mr.
    Lynch expressed his desire to give Defendant a “second chance or opportunity to do
    better.” He testified that Defendant “perform[ed] his job very well.” He testified that
    Defendant’s paycheck was garnished for child support.
    David Wiley was a minister at Brainerd Baptist Church. He met Defendant
    approximately three years earlier through a prison ministry at the Hamilton County jail.
    Defendant was initially very quiet, but he changed and began “studying the word.” Mr.
    Wiley testified that in the time he had known Defendant, Defendant had become “a
    dramatically different person.” Mr. Wiley believed that Defendant had changed for the
    better and that his change was “legit.” Defendant maintained contact with Mr. Wiley
    after he was released from jail. Mr. Wiley testified that other members of Defendant’s
    family had also started attending church.
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    Defendant’s mother, Marie Jones, testified that Defendant was “a pretty good kid.”
    She testified that he reads the Bible and does housework and yard work for her. She
    testified that Defendant was 24 years old and that he lived with her. She testified on
    cross-examination that detectives came to her house attempting to locate Defendant after
    the shooting. Defendant was not there, and he never returned home after the shooting
    and before he was arrested.
    Dejay Trip testified that she was Defendant’s girlfriend and pregnant with his
    child. She testified that Defendant was good to her and was going to take care of her and
    their child because he was working. She and Defendant lived with her grandmother in an
    apartment. She testified that Defendant also lived with his mother and went “back and
    forth.” She testified that Defendant had three other children with other women.
    Defendant gave an allocution. He expressed remorse and testified that he had
    “learned from [his] previous mistakes.” He testified that he was “a changed person[.]”
    He expressed his desire “to be a strong family man[,]” to take care of his children, and to
    make “an honest living” and “contribute to [ ] society.”
    At the conclusion of the sentencing hearing, the trial court noted that Defendant
    pleaded guilty to a Class D felony as a Range I offender, and the possible sentence range
    was two to four years. The court noted Defendant had a prior history of criminal
    offenses. Defendant had a previous conviction for aggravated burglary, a Class C felony.
    He also had six misdemeanor convictions, including criminal trespass, theft, failure to
    appear, and possession of drugs. Defendant had also violated probation twice as a
    juvenile. The court noted from the presentence report that Defendant’s probation
    supervisor indicated that Defendant’s progress under intensive probation was “poor.”
    The trial court stated that it considered the evidence presented at the sentencing
    hearing as well as “the record as a whole,” the presentence report, and the principles of
    sentencing, including imposing punishment to prevent crime and to promote respect for
    the law. The court also considered the nature and characteristics of the criminal conduct
    involved, the evidence and arguments offered by the parties as to mitigating or
    enhancement factors, and the statistical information provided by the Tennessee
    Administrative Office of the Courts for similar offenses. The court also considered
    Defendant’s allocution statement.
    The trial court found that Defendant had a previous history of criminal conduct;
    that Defendant previously failed to comply with the conditions of a sentence involving
    release into the community; that Defendant had no hesitation about committing a crime
    when the risk to human life was high; and that Defendant was adjudicated to have
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    committed a delinquent act that would constitute a felony if committed by an adult. The
    trial court considered the mitigating factors argued by Defendant. The court found that
    Defendant lied to the police on two occasions, and that showed “very well that he was
    aware of the seriousness of his actions and the consequences of his actions.” The court
    also found by a preponderance of the evidence that Defendant “did go on the run for a
    while and that he left home right after the offense was committed on March 17th and then
    frankly never returned.” The court found that Defendant’s actions showed that
    Defendant had “a full appreciation for the seriousness of the acts that were involved.”
    The court gave “some weight” to Defendant’s efforts at rehabilitation, his work ethic, and
    that Defendant had called 911. The court found, however, that the applicable
    enhancement factors “substantially outweigh the mitigation factor[,]” and the court
    imposed the maximum sentence of four years.
    The trial court next considered whether to grant Defendant’s request for an
    alternative sentence. The court noted that it had to consider “a number of factors” in
    determining whether to grant an alternative sentence. The court considered the
    presentence report, the facts and circumstances surrounding the offense, and the nature of
    the criminal conduct involved. The court noted that the criminal conduct was “extremely
    serious” because the victim was “shot in the face” while she was “nine weeks pregnant.”
    The court also considered that Defendant discharged the weapon while in a house with
    children and other people present. The court noted that Defendant lied to the 911
    operator and to the police in his first interview, when he stated that he was not the
    shooter. The court considered Defendant’s potential for rehabilitation and found that
    Defendant’s lack of candor and failure to accept responsibility for his actions weighed
    against application of that factor. The court found that there was “very little evidence
    that [Defendant was] actually remorseful for the harm and the damage that [he had]
    caused [the victim,]” and the court noted that Defendant did not express remorse for
    causing the victim’s injuries.
    The trial court found that Defendant had “a history of probation violations.” The
    court considered whether measures less restrictive than confinement have been frequently
    or recently applied unsuccessfully to Defendant. The court noted that Defendant failed to
    appear for his first sentencing hearing in this case. The court stated, “that had everything
    to do with you not wanting to take responsibility until you were arrested and brought in
    and forced to take responsibility for it.”
    The trial court found that there was a presumption that Defendant was a favorable
    candidate for alternative sentencing. The court concluded, however, that the presumption
    was “rebutted in this case.” The court found that confinement was necessary to avoid
    depreciating the seriousness of the offense and that Defendant’s actions were “especially
    -6-
    shocking, reprehensible, and offensive.”      The court ordered Defendant to serve his
    sentence in confinement.
    Analysis
    On appeal, Defendant challenges both the length and manner of service of the
    sentence imposed by the trial court. Specifically, he argues that the trial court erred in its
    application of mitigating factors and in denying probation. The State contends that the
    trial court did not abuse its discretion by finding that the applicable enhancement factors
    outweighed the mitigating factors, nor did the trial court abuse its discretion by imposing
    a sentence of incarceration.
    “[T]he abuse of discretion standard, accompanied by a presumption of
    reasonableness, applies to within-range sentences that reflect a decision based upon the
    purposes and principles of sentencing, including questions related to probation or any
    other alternative sentence.” State v. Caudle, 
    388 S.W.3d 273
    , 278-79 (Tenn. 2012). A
    trial court must consider the following when determining a defendant’s specific sentence
    and the appropriate combination of sentencing alternatives: (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 sections 40-35-113 and
    40-35-114; (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 wishes to make in the defendant’s own behalf about sentencing. T.C.A. §§
    40-35-210(b)(1)-(7). In addition, “[t]he potential or lack of potential for the rehabilitation
    or treatment of the defendant should be considered in determining the sentence
    alternative or length of a term to be imposed.” 
    Id. § 40-35-103(5).
    The court must
    impose a sentence “no greater than that deserved for the offense committed” and “the
    least severe measure necessary to achieve the purposes for which the sentence is
    imposed.” 
    Id. §§ 40-35-103(2),
    (4).
    Our review of the record supports the trial court’s imposition of the maximum
    sentence in this case. As an initial matter, Defendant was a Range I, standard offender
    and subject to a sentencing range of two to four years for the offense of reckless
    aggravated assault, a Class D felony. See 
    id. § 40-35-112(a)(4).
    Thus, the trial court’s
    four-year sentence was within the applicable statutory range and presumed reasonable.
    In determining the appropriate length of Defendant’s sentence, the trial court
    relied upon several enhancement factors, including factors (1), (8), (10), and (16): that
    Defendant had a previous history of criminal convictions or criminal behavior in addition
    -7-
    to those necessary to establish the appropriate range; that, before trial or sentencing,
    Defendant had failed to comply with the conditions of a sentence involving release into
    the community; that Defendant had no hesitation about committing a crime when the risk
    to human life was high; and that Defendant was adjudicated to have committed a
    delinquent act as a juvenile that would constitute a felony if committed by an adult. See
    T.C.A. §40-35-114.
    Defendant argues that the trial court abused its discretion in finding that Defendant
    had no hesitation about committing a crime when the risk to human life was high. In
    considering that enhancement factor, the trial court noted that it did not weigh that factor
    “as heavily as it would have” because defense counsel argued that the shooting was
    accidental. Our supreme court has noted that even if a trial court misapplies an
    enhancement factor, if other evidence supports the sentence, this court must affirm the
    decision of the trial court. In State v. Bise, the court noted:
    [A] trial court’s misapplication of an enhancement . . . factor does not
    invalidate the sentence imposed unless the trial court wholly departed
    from the [Sentencing] Act . . . . So long as there are other reasons
    consistent with the purposes and principles of sentencing, as provided by
    statute, a sentence imposed by the trial court within the appropriate range
    should be upheld.
    
    380 S.W.3d 682
    , 706 (Tenn. 2012).
    Here, the record shows that the trial court carefully considered the sentencing
    principles and applicable enhancement and mitigating factors, and the trial court imposed
    a sentence within the applicable range and made the requisite findings in support of its
    ruling.
    Next, Defendant argues that the trial court erred by denying an alternative
    sentence. Any sentence that does not involve complete confinement is an alternative
    sentence. See generally State v. Fields, 
    40 S.W.3d 435
    (Tenn. 2001).
    A trial court should consider the following when determining any defendant’s
    suitability for alternative sentencing:
    (A) Confinement is necessary to protect society by restraining a
    defendant who has a long history of criminal conduct;
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    (B) Confinement is necessary to avoid depreciating the seriousness of
    the offense or confinement is particularly suited to provide an effective
    deterrence to others likely to commit similar offenses; or
    (C) Measures less restrictive than confinement have frequently or
    recently been applied unsuccessfully to the defendant[.]
    T.C.A. § 40-35-103(1). A trial court should also consider a defendant’s potential or lack
    of potential for rehabilitation when determining if an alternative sentence would be
    appropriate. T.C.A. § 40-35-103(5); State v. Boston, 
    938 S.W.2d 435
    , 438 (Tenn. Crim.
    App. 1996). Stating again, in sentencing a defendant, a trial court should impose a
    sentence that is “no greater than that deserved for the offense committed” and is “the
    least severe measure necessary to achieve the purposes for which the sentence is
    imposed.” T.C.A. § 40-35-103(2), (4).
    An offender is eligible for an alternative sentence if he or she is sentenced to ten
    years or less and has not been convicted of certain specified offenses. See T.C.A. § 40-
    35-303(a). A defendant with a total effective sentence greater than ten years is still
    eligible for probation if the individual sentences imposed for the convictions fall within
    the probation eligibility requirements. State v. Langston, 
    708 S.W.2d 830
    , 832-33 (Tenn.
    1986). A defendant who is an especially mitigated or standard offender convicted of a
    Class C, D, or E felony should be considered a favorable candidate for alternative
    sentencing absent evidence to the contrary. See T.C.A. § 40-35-102(6)(A). However, no
    longer is any defendant entitled to a presumption that he or she is a favorable candidate
    for alternative sentencing. State v. Carter, 
    254 S.W.3d 335
    , 347 (Tenn. 2008).
    Tennessee Code Annotated section 40-35-102(6) is now only advisory. See T.C.A. § 40-
    35-102(6)(D).
    Additionally, no criminal defendant is automatically entitled to probation as a
    matter of law. See State v. Davis, 
    940 S.W.2d 558
    , 559 (Tenn. 1997). It is the
    defendant’s burden to establish his or her suitability for full probation. See 
    Carter, 254 S.W.3d at 347
    (citing T.C.A. § 40-35-303(b)). The defendant must demonstrate that
    probation will “subserve the ends of justice and the best interests of both the public and
    the defendant.” Hooper v. State, 
    297 S.W.2d 78
    , 81 (Tenn. 1956), overruled on other
    grounds, State v. Hooper, 
    29 S.W.3d 1
    , 9-10 (Tenn. 2000). Among the factors applicable
    to probation consideration are the circumstances of the offense; the defendant’s criminal
    record, social history, and present condition; the deterrent effect upon the defendant; and
    the best interests of the defendant and the public. State v. Grear, 
    568 S.W.2d 285
    , 286
    (Tenn. 1978). The same considerations attendant to the determination whether to place a
    defendant on judicial diversion are relevant to a decision whether to grant other forms of
    alternative sentencing. See State v. Bingham, 
    910 S.W.2d 448
    , 456 (Tenn. Crim. App.
    -9-
    1995), overruled on other grounds, 
    Hooper, 29 S.W.3d at 9
    (noting that the “same
    guidelines are applicable in diversion cases as are applicable in [alternative sentencing]
    cases”).
    We agree with the State that the record supports the trial court’s denial of
    probation or other alternative sentencing. The record reflects that the trial court carefully
    and at length considered the relevant sentencing principles and applied them to the facts
    of the case. The trial court’s decision to deny alternative sentencing was supported by
    clearly articulated reasons, and Defendant has failed to prove that the court abused its
    discretion or that he is otherwise a good candidate for an alternative sentence.
    Accordingly, Defendant is not entitled to relief on this issue.
    CONCLUSION
    Based on the foregoing analysis, the judgment of the trial court is affirmed.
    ____________________________________________
    THOMAS T. WOODALL, PRESIDING JUDGE
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