State of Tennessee v. Victor Wise ( 2019 )

09/18/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 9, 2019
STATE OF TENNESSEE v. VICTOR WISE
Appeal from the Criminal Court for Shelby County
No. 16-06899 James Lammey, Jr., Judge
No. W2018-01343-CCA-R3-CD
The defendant, Victor Wise, appeals his Shelby County Circuit Court jury convictions of
two counts of aggravated robbery, one count of attempted aggravated robbery, and two
counts of aggravated assault, challenging the exclusion of certain evidence, the
sufficiency of the convicting evidence, and the propriety of the 44-year effective
sentence. We affirm the defendant’s convictions but conclude that the trial court erred by
imposing consecutive sentences. Accordingly, the defendant’s total effective sentence is
modified to 12 years.
Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed as Modified
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and J. ROSS DYER, JJ., joined.
Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Trenton Ray Forrester.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jamie Kidd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The Shelby County Grand Jury charged the defendant, Aaron Cathey, and
Cortavius Macklin, aka Cortavius Grove, with two counts of aggravated robbery, one
count of attempted aggravated robbery, and two counts of aggravated assault for their
roles in the August 4, 2016 “smash-and-grab” robbery at a Memphis pawn shop.
At the February 2018 trial, Cash America Pawn employee Darnell Smith
testified that shortly after the store opened on August 4, 2016, two men entered the store.
One man stood at the jewelry case while “the other one was like pacing the floor of the
store.” The man who had been pacing the store “pulled a gun out on the manager” and
demanded cash. The man who had been standing at the jewelry counter then smashed the
glass of the jewelry case with a hammer and began taking jewelry. The men took more
than 20 individual pieces of jewelry, approximately $700 cash, and a car “amp” from the
store.
Mr. Smith said that he feared for his life during the robbery. He provided a
statement to the police and, after viewing two photographic arrays, identified the two
men who had entered the store and committed the robbery. The defendant was not one of
them.
Cash America Pawn manager Nichole Keys testified that on August 4,
2016, two men entered the store and one of the men pointed a gun at her while the other
“proceeded on to break the jewelry cases and pull jewelry out of the cases.” She recalled
that the man with a gun said, “‘You know what this is about.’” She interpreted this
statement to “basically” mean that she should “give him all the money out of the
registers,” and she did so. At one point, the man with the gun pointed it at another
customer who was “trying to make us do a transaction for him not realizing that we were
being robbed.” The man with the gun ordered the customers onto the floor. Ms. Keys
pressed the “hold-up alarm” as she was getting the cash from the registers. She said that
she was terrified during the robbery.
Ms. Keys testified that the jewelry cases taken during the robbery were
equipped with global positioning satellite (“GPS”) devices. During the robbery, a total of
118 individual pieces of jewelry with a total value of $24,555 was taken.
Willie Conway was a customer at Cash America Pawn when two men came
into the store and “told us to hit the floor - don’t look back or they’ll bust a cap in our
head.” Mr. Conway said that one of the men pointed a gun at him and that he feared for
his life. The man with the gun took $400 from Mr. Conway.
Ben Berry was also a customer at Cash America Pawn on August 4, 2016,
when the store was robbed at gunpoint. Mr. Berry said that a man with a gun “said, ‘All
right, you all know what time it is; everybody hit the ground.’” Mr. Berry said that he
and another customer got on the floor and that he heard breaking glass. Mr. Berry said
that he feared for his life. He recalled that the man with the gun tried to take money from
him, but he did not have any money on his person at the time.
Memphis Police Department (“MPD”) Sergeant Richard Rouse testified
that when he heard “the broadcast over the radio about the robbery,” he “followed
directions on the radio from some tracking of the possible suspect vehicle.” He explained
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that officers viewing location information from the GPS devices installed on property
taken during the robbery relayed that location information over the radio and that he
followed those directions onto the interstate and into West Memphis, Arkansas. Sergeant
Rouse said that he did not intend “to continue too much into the next state,” so he decided
“to take the exit and turn around and come back to Memphis.” At the end of the off-
ramp, Sergeant Rouse saw a blue Nissan Maxima that matched the description of the
suspect vehicle. He followed the car.
The blue Nissan pulled into the parking lot of the Greyhound Gaming
Casino, which was also known as the Southland Gaming Casino (“the Casino”), and
parked. Sergeant Rouse parked a short distance away to observe the vehicle. Shortly
thereafter, a message came over the radio that “the vehicle was stopped stationary at the
southeast corner” of the Casino. Sergeant Rouse immediately radioed to other officers
that he had the vehicle in sight and that there were three occupants. At that point, the
driver exited the vehicle and began walking toward the Casino. He described the driver
as a black male in his late twenties wearing a white t-shirt, gray “camo pattern” shorts,
and particularly distinctive “bright blue shoes.”
Surveillance video from outside the Casino captured a man fitting that same
description exiting a blue Maxima and entering the Casino. Surveillance video from
inside the Casino captured the man coming from what appeared to be the restroom area
wearing different pants but the “same blue shoes and same white T-shirt.” The man sat
down at a slot machine. Officers approached the man and placed him under arrest.
Sergeant Rouse identified the defendant as the man who had exited the driver’s side of
the Maxima, entered the Casino, and changed his clothes while inside.
Officers from the West Memphis Police Department arrived, and Sergeant
Rouse flagged them down to explain the situation. At that point, the two occupants of the
Maxima got out of the car and began running away. Sergeant Rouse chased one of the
men, while an officer of the West Memphis Police Department pursued the other. The
man that Sergeant Rouse was chasing, who was later identified as Cortavius Grove, ran
into a nearby field, where Sergeant Rouse later located him with assistance from a West
Memphis Police Department Canine Unit. The other man, later identified as Aaron
Cathey, was also apprehended at the scene.
Officers found the jewelry display cases and jewelry taken from Cash
America Pawn inside the blue Maxima along with “piles of money.” Officers also
discovered “burglary tools,” including “sledge hammers, hammers, [and] bolt cutters,”
and a pistol inside the Maxima.
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MPD Sergeant Taurus Nolen testified that he was a member of the Federal
Bureau of Investigation Safe Streets Task Force, which was tasked with investigating
business and bank robberies in Memphis. He stated that the GPS tracking system
associated with the devices placed on the items taken from Cash America Pawn was
“live-wired” so that “every time it goes off, we get a ping on our phones.” Sergeant
Nolen “tracked the pings, live time,” and “[t]hey ended up at a point of rest at” the
Casino. Sergeant Nolen and other Task Force members traveled to the Casino, and they
made the decision to transport all three suspects to the West Memphis Police Department
to be interviewed.
Sergeant Nolen interviewed co-defendant Aaron Cathey, whom he
described as “very smart” looking. Mr. Cathey told Sergeant Nolen that he and Mr.
Grove entered Cash America Pawn and that he demanded money at gunpoint while Mr.
Grove “smashed the display cases and took jewelry.” He said that the gun, which was
actually a BB gun, had been given to him by the defendant, who had acted as a lookout
and getaway driver. After robbing the store, Mr. Cathey and Mr. Grove ran into an
abandoned house, where they changed clothes before getting into the car with the
defendant. The defendant drove them to the Casino, where they had planned to get
something to eat. Mr. Cathey identified the defendant and Mr. Grove from two separate
photographic arrays and wrote on the defendant’s photo, “‘He also planned it and sent me
and Tave in.’”
Mr. Cathey testified that the defendant texted him early on the morning of
August 4, 2016, and asked him to “[d]o a smash and grab” at Cash America Pawn. Mr.
Cathey agreed to participate, and the defendant and Mr. Grove picked him up a short time
later. They drove around briefly “[t]o scope out the scene” before parking “on the east
side of McLemore” to await the store’s opening. Mr. Cathey said that the defendant
provided him with a BB gun and told him to pull the gun when he heard Mr. Grove
smash the glass. Mr. Cathey stated that all three men were to get a share of the proceeds
of the robbery.
Shortly after the store opened, Mr. Cathey, armed with the BB gun, and Mr.
Grove, armed with a hammer, entered and began executing their plan. Mr. Grove
smashed the display case with a hammer, and Mr. Cathey “raised the gun and . . . told
‘em, ‘You all know what it is - everybody get down.’” Mr. Cathey took the cash while
Mr. Grove took the merchandise. After the robbery, Mr. Cathey and Mr. Grove “[r]an on
the backside and went to James Street. Ran into an abandoned house and disregarding
our clothes that we had on.” They then called the defendant to pick them up, and the
three men fled in Mr. Grove’s blue Nissan Maxima “down Walker headed towards East
Crump.” They traveled to the Casino, and the police arrived shortly thereafter.
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During cross-examination, Mr. Cathey testified that he had not been given
any consideration in exchange for his testifying against the defendant. He said that the
robbery plan was “just to go in and snatch the jewelry” and not to take the cash from the
customers. He admitted that he made the decision to take cash from the customers.
The defendant elected not to testify and did not present any proof.1
Based upon this evidence, the jury convicted the defendant as charged.
Following a sentencing hearing, the trial court imposed sentences of 12 years for both of
the defendant’s convictions of aggravated robbery and sentences of 10 years each for the
defendant’s convictions of attempted aggravated robbery and aggravated assault. The
trial court merged the defendant’s convictions for the aggravated assault and attempted
aggravated robbery of Mr. Berry into a single conviction. The court ordered consecutive
sentencing for a total effective sentence of 44 years’ incarceration.
The defendant filed a timely but unsuccessful motion for new trial followed
by a timely notice of appeal. In this appeal, he challenges the exclusion of testimony
from Jailer Jaquana Crutcher, the sufficiency of the convicting evidence, and the
propriety of the 44-year effective sentence.
I. Excluded Testimony
The defendant asserts that the trial court erred by excluding the testimony
of Jailer Jaquana Crutcher, arguing that the court abused its discretion by concluding that
her proffered testimony was irrelevant. The State contends that the ruling was proper.
After the State closed its case-in-chief, the defendant attempted to call
Jailer Jaquana Crutcher. The State objected on grounds that Ms. Crutcher had no relevant
testimony to offer. The trial court permitted the parties to question the witness out of the
presence of the jury before making its ruling. During that questioning, Ms. Crutcher said
that she overheard Mr. Cathey say that he had been at Cash America Pawn and then “say
something about the dog track” as she “was doing [her] round.” She said that she never
heard Mr. Cathey mention the defendant’s name and that he only talked about himself
during the conversation she overheard.
The trial court ruled that Ms. Crutcher’s testimony was irrelevant. The
court noted that, had the witness testified that she overheard Mr. Cathey say that the
defendant had not been involved in the robbery, that testimony would certainly have been
1
The defendant attempted to call Jailer Jaquana Crutcher to testify about a statement that she
overheard Mr. Cathey make at the jail, but the trial court deemed her testimony irrelevant. The exclusion
of her testimony is one of the issues presented in this appeal.
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admissible. The court also concluded that Ms. Crutcher’s proposed testimony did not
impeach that offered by Mr. Cathey.
Relevant evidence is 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. “Evidence which
is not relevant is not admissible.” Tenn. R. Evid. 402. Questions concerning evidentiary
relevance rest within the sound discretion of the trial court, and this court will not
interfere with the exercise of this discretion in the absence of a clear abuse appearing on
the face of the record. See State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v.
Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); State v. Harris, 839 S.W.2d 54, 73 (Tenn.
1992). An abuse of discretion occurs when the trial court applies an incorrect legal
standard or reaches a conclusion that is “illogical or unreasonable and causes an injustice
to the party complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing
Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)).
That Ms. Crutcher overheard Mr. Cathey mention Cash America Pawn and
“say something about the dog track,” when he made no mention at all of the defendant,
did not make any fact of consequence at the defendant’s trial more or less probable. The
question presented was whether the defendant was a participant in the robbery of Cash
America Pawn. Nothing in Ms. Crutcher’s proffered testimony had any bearing on that
inquiry. In consequence, the trial court did not err by excluding it.
II. Sufficiency
The defendant challenges the sufficiency of the convicting evidence,
arguing that his convictions were improperly based “mainly” on the testimony of Mr.
Cathey.2 The State asserts that the evidence was sufficient to support the convictions.
We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
2
The defendant also seems to suggest that the exclusion of Ms. Crutcher’s testimony gave rise to
reasonable doubt about the defendant’s participation, stating, “If the court had allowed Deputy Jailor to
testify about the co-defendants discussing the robbery, perhaps the testimony could have shed more light
on the subject.” The record establishes, however, that the trial court allowed the parties to question Ms.
Crutcher before making a determination about the admissibility of her testimony.
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370, 379 (Tenn. 2011).
When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.
As charged in this case, aggravated robbery “is robbery as defined in § 39-
13-401 . . . [a]ccomplished with a deadly weapon or by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. §
39-13-402(a)(1). “Robbery is the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” Id. § 39-13-401(a). “A
person commits criminal attempt who, acting with the kind of culpability otherwise
required for the offense . . . [i]ntentionally engages in action or causes a result that would
constitute an offense, if the circumstances surrounding the conduct were as the person
believes them to be.” Id. § 39-12-101(a)(1).
A person commits aggravated assault who . . . [i]ntentionally or knowingly
commits an assault as defined in § 39-13-101, and the assault . . . [i]nvolved the use or
display of a deadly weapon.” Id. § 39-13-102(a)(1)(A)(iii). “A person commits assault
who . . . [i]ntentionally or knowingly causes another to reasonably fear imminent bodily
injury.” Id. § 39-13-101(a)(2).
In this case, the defendant was convicted under a theory that he was
criminally responsible for the actions of Mr. Cathey and Mr. Grove. “A person is
criminally responsible as a party to an offense, if the offense is committed by the person’s
own conduct, by the conduct of another for which the person is criminally responsible, or
by both.” T.C.A. § 39-11-401(a). As charged here, criminal responsibility for the actions
of another arises when the defendant, “[a]cting with intent to promote or assist the
commission of the offense, or to benefit in the proceeds or results of the offense, . . .
solicits, directs, aids, or attempts to aid another person to commit the offense.” Id. § 39-
11-402(2); see State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999) (“[C]riminal
responsibility is not a separate, distinct crime. It is solely a theory by which the State
may prove the defendant’s guilt of the alleged offense . . . based upon the conduct of
another person.”).
It is well settled “that a conviction may not be based solely upon the
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uncorroborated testimony of an accomplice to the offense.” State v. Bane, 57 S.W.3d
411, 419 (Tenn. 2001) (citing State v. Stout, 46 S.W.3d 689, 696-97 (Tenn. 2001); State
v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 379 S.W.2d 34, 43 (Tenn.
1964)). Indeed, “[w]hen the only proof of a crime is the uncorroborated testimony of one
or more accomplices, the evidence is insufficient to sustain a conviction as a matter of
law.” State v. Jones, 450 S.W.3d 866, 888 (Tenn. 2014) (citing State v. Collier, 411
S.W.3d 886, 894 (Tenn. 2013)). By way of explanation, our supreme court has stated:
There must be some fact testified to, entirely independent of
the accomplice’s testimony, which, taken by itself, leads to
the inference, not only that a crime has been committed, but
also that the defendant is implicated in it; and this
independent corroborative testimony must also include some
fact establishing the defendant’s identity. This corroborative
evidence may be direct or entirely circumstantial, and it need
not be adequate, in and of itself, to support a conviction; it is
sufficient to meet the requirements of the rule if it fairly and
legitimately tends to connect the defendant with the
commission of the crime charged. It is not necessary that the
corroboration extend to every part of the accomplice’s
evidence.
Bane, 57 S.W.3d at 419 (quoting Bigbee, 885 S.W.2d at 803); see also State v. Fowler,
373 S.W.2d 460, 463 (Tenn. 1963).
An accomplice is an individual who knowingly, voluntarily, and with
common intent participates with the principal offender in the commission of an offense.
State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). “When the facts
concerning a witness’s participation are clear and undisputed, the trial court determines
as a matter of law whether the witness is an accomplice.” State v. Robinson, 146 S.W.3d
469, 489 (Tenn. 2004) (citing Ripley v. State, 227 S.W.2d 26, 29 (1950); State v.
Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992)). When “the facts are disputed or
susceptible to different inferences,” however, the determination of whether the witness is
an accomplice is a question for the trier of fact. Robinson, 146 S.W.3d at 489 (citing
Perkinson, 867 S.W.2d at 7); see also Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim.
App. 1975). “The test generally applied is whether the witness could be indicted for the
same offense charged against the defendant.” Robinson, 146 S.W.3d at 489 (citing
Monts, 379 S.W.2d at 43).
To be sure, Mr. Cathey was an accomplice to all the charged offenses. That
being said, his testimony was sufficiently corroborated by other evidence in the record.
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The evidence adduced at trial established that Mr. Cathey and Mr. Grove
walked into Cash America Pawn on the morning of August 4, 2016, and robbed the store
of cash and jewelry and stole cash from two store patrons at gunpoint. Mr. Cathey
testified that the defendant texted him that morning and asked him to participate in a
“smash and grab” robbery at the store with Mr. Grove. Mr. Cathey agreed, and the
defendant and Mr. Grove picked Mr. Cathey up in Mr. Grove’s blue Nissan Maxima.
The defendant drove Mr. Cathey and Mr. Grove to the area near Cash America Pawn,
and, after driving around to survey the area, he dropped Mr. Cathey and Mr. Grove off at
the store. Mr. Cathey was armed with a BB gun given to him by the defendant, and Mr.
Grove was armed with a hammer. Mr. Cathey pointed the BB gun at Ms. Keys and
demanded money from the register while Mr. Grove smashed the glass of the jewelry
display case with a hammer and began loading jewelry into a bag. At one point, Mr.
Cathey turned the gun upon the customers present and demanded cash. Mr. Conway
gave him some $400, but Mr. Berry had no cash to give. Mr. Berry, Ms. Keys, Mr.
Conway, and Mr. Smith all testified that they feared that they would be shot or killed
during the robbery.
After the robbery, Mr. Cathey and Mr. Grove ran into a nearby abandoned
house, where they changed clothes and telephoned the defendant to pick them up. The
defendant arrived and then drove the men to the Casino, where they intended to eat and
divvy up the proceeds. Unbeknownst to the perpetrators, the jewelry cases taken during
the robbery were equipped with GPS trackers that allowed the police to track their
movements from Cash America Pawn to the Casino. Sergeant Rouse, who was tracking
the Maxima’s movements, eventually ended up behind the car. He parked nearby at the
Casino and kept the car under constant surveillance while he awaited backup. He
watched the defendant exit the driver’s seat and enter the Casino. The defendant changed
clothes while inside the Casino. Video surveillance from inside the Casino made it
possible to track the defendant’s movements from the time he entered the facility until his
arrest a few minutes later. The jewelry and cash was found in the car the defendant was
driving.
In our view, this evidence was more than sufficient to support each of the
defendant’s convictions.
III. Sentencing
The defendant asserts that the trial court erred by imposing a total effective
sentence of 44 years’ incarceration, arguing that “[h]is role did not mandate consecutive
sentences.”
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Our supreme court has adopted an abuse of discretion standard of review
for sentencing and has prescribed “a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of
the purposes and principles of sentencing involves a consideration of “[t]he potential or
lack of potential for the 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(5). Trial
courts are “required under the 2005 amendments to ‘place on the record, either orally or
in writing, what enhancement or mitigating factors were considered, if any, as well as the
reasons for the sentence, in order to ensure fair and consistent sentencing.’” Bise 380
S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)). The standard of review adopted in
Bise “applies similarly” to the imposition of consecutive sentences, “giving deference to
the trial court’s exercise of its discretionary authority to impose consecutive sentences if
it has provided reasons on the record establishing at least one of the seven grounds listed
in Tennessee Code Annotated section 40-35-115(b).” State v. Pollard, 432 S.W.3d 851,
861 (Tenn. 2013). In State v. Wilkerson, the supreme court imposed two additional
requirements for consecutive sentencing when the “dangerous offender” category is used:
the court must find that consecutive sentences are reasonably related to the severity of the
offenses committed and are necessary to protect the public from further criminal conduct.
See State v. Wilkerson, 905 S.W.2d 933, 937-39 (Tenn. 1995); State v. Imfeld, 70 S.W.3d
698, 707-08 (Tenn. 2002).
At the sentencing hearing, the State asked the trial court to merge the
defendant’s convictions of the attempted aggravated robbery and aggravated assault of
Mr. Berry but asked the court to impose consecutive terms for the remaining convictions.
The defendant argued that consecutive sentences were not warranted under the
circumstances.
Here, the trial court enhanced the length of each of the defendant’s Range I
sentences upon determining that the defendant had a history of criminal convictions or
criminal behavior in addition to that necessary to establish his sentencing range, see
T.C.A. § 40-35-114(1); that the defendant was a leader in the commission of the offenses,
see id. § 40-35-114(2); that the offenses involved more than one victim, see id. § 40-35-
114(3); that the amount of property taken was particularly great, see id. § 40-35-114(6);
that the defendant had failed to comply with a sentence involving release into the
community, see id. § 40-35-114(8); that the defendant had no hesitation about
committing the crime despite the high risk to human life, see id. § 40-35-114(10); and
that the defendant committed an offense as a juvenile that would have been classified as a
felony if committed by an adult, see id. § 40-35-114(16). The court gave very little
weight to enhancement factors three, six, eight, and 10 but gave great weight to factors
one, two, and 16. The trial court imposed the maximum within-range sentence for each
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of the defendant’s convictions.
The trial court concluded that consecutive sentences were warranted in this
case because the defendant was an offender with an extensive record of criminal activity.
The court observed that the defendant was in and out of the juvenile system from the age
of 14, that he continued to engage in criminal activity after reaching the age of majority,
and that he had held only a single, verifiable job in his entire life. The court also found
that the defendant was a dangerous offender, observing that the circumstances of the
offense were exaggerated by the fact that the defendant did not actually enter the store
but “let other people do his dirty work” and that the aggregate sentence reasonably
related to the severity of the offenses. As to the latter finding, the court found that
concurrent sentencing would allow the defendant “to have two violent crimes for the
price of one - or three - or four for the price of one.” The court merged counts three and
four and ordered that the sentences for the remaining counts be served consecutively to
one another for a total effective sentence of 44 years’ incarceration.
As an initial matter, we note that none of the exhibits from the sentencing
hearing were included in the record on appeal. In the absence of the presentence report
and certified records examined by the trial court during the hearing, we must presume
that the determinations of the trial court regarding the defendant’s criminal record are
correct.
That being said, the record does not support the trial court’s conclusion that
the defendant had an extensive record of criminal activity that would justify the
imposition of consecutive sentences. According to the trial court, the defendant had
several “encounters” with the criminal justice system as a juvenile. See State v. Stockton,
733 S.W.2d 111, 112-13 (Tenn. Crim. App. 1986) (observing that “a juvenile record of
criminal conduct may properly be considered in assessing a suitable sentence upon a
felony conviction by an adult”). Despite being 30 years old, however, the defendant had
only two felony adult convictions for relatively minor offenses. Although the defendant
stated in the presentence report that he had led a “life of crime,” he did so in the context
of discussing his family history. Moreover, although the trial court pointed out that the
defendant had no verifiable employment history, it did not find that the defendant was “a
professional criminal who has knowingly devoted the defendant’s life to criminal acts as
a major source of livelihood.” T.C.A. § 40-35-115(b)(1). Finally, the trial court failed to
make the appropriate findings to impose consecutive sentences based upon the
defendant’s being a dangerous offender. See Pollard, 432 S.W.3d at 863 (“The adoption
of the abuse of discretion standard with the presumption of reasonableness has not
eliminated [the Wilkerson] requirement.”). The trial court specifically failed to find that
consecutive sentences were necessary to protect the public from further criminal conduct.
See Wilkerson, 905 S.W.2d at 937-39. In its finding that consecutive sentences
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reasonably related to the severity of the offenses committed, the trial court focused on its
own opinion that the imposition of concurrent sentences would allow the defendant “to
have two violent crimes for the price of one - or three - or four for the price of one”
instead of focusing on the severity of the crimes actually committed. See id. Although
we have no doubt the victims experienced fear during the robberies, the smash-and-grab
robbery was not even committed with an actual firearm. Although Mr. Grove was
carrying a hammer, there was no proof that he used it for anything other than smashing
the glass jewelry case. The trial court made much of the fact that the defendant “let
others do his dirty work,” but the evidence adduced at trial established that Mr. Cathey
willingly agreed to participate in the robbery when asked to do so by the defendant.
There was no proof that the defendant forced either Mr. Cathey or Mr. Grove to enter
Cash America Pawn and commit the offenses therein. Indeed, Mr. Cathey testified that
he alone elected to take money from the other customers in the store, which action led to
all but one of the conviction offenses. The record also established that no one was
injured, and the offenders were apprehended in short order.
Under these circumstances, it is our view that the record does not support
the imposition of consecutive sentences. Accordingly, we reverse the imposition of
consecutive sentences and remand the case for the entry of judgments reflecting
concurrent alignment of all the sentences. The new effective sentence is, therefore, 12
years.
IV. Conclusion
Based upon the foregoing analysis, we affirm the defendant’s convictions
but reverse the imposition of consecutive sentences. The case is remanded for the entry
of judgment reflecting the newly modified sentences.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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