State of Tennessee v. Henry Nicholas Brown ( 2019 )

10/22/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 27, 2019
STATE OF TENNESSEE v. HENRY NICHOLAS BROWN
Appeal from the Criminal Court for Roane County
No. 2017-CR-377 Jeffery Hill Wicks, Judge
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No. E2018-02135-CCA-R3-CD
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The Defendant-Appellant, Henry Nicholas Brown, entered a guilty plea in the Roane
County Criminal Court to aggravated assault (count one), evading arrest (count two), and
reckless endangerment (count three), with the trial court to determine the length and
manner of service of his sentence.1 Following a sentencing hearing, the trial court
sentenced the Defendant to six, four, and two years, respectively. The trial court ordered
these sentences to be served consecutively, for an effective sentence of twelve years in
the Tennessee Department of Correction. In this appeal as of right, the Defendant
contends that the trial court erred in imposing consecutive sentences. Upon our review,
we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which TIMOTHY L.
EASTER, and J. ROSS DYER, JJ., joined.
Mart S. Cizek, Assistant Public Defender, for the Defendant-Appellant, Henry Nicholas
Brown.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Russell Johnson, District Attorney General; and Robert C.
Edwards, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
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The Defendant also entered a guilty plea to driving on a suspended, cancelled, or revoked
license, for which he received a concurrent sentence of six months. In addition, during the same court
setting, the Defendant entered guilty pleas to another set of similar cases from 2014 involving
misdemeanor assault, resisting arrest, and evading arrest. None of these cases are challenged in this
appeal.
This case stems from a traffic stop of the Defendant, during which the Defendant
abruptly pulled off in his vehicle and seriously injured a law enforcement officer in the
process. On July 24, 2018, the Defendant entered a guilty plea and stipulated to the
following factual basis:
[C]ount one, is that [the Defendant], on or about [August 6, 2017], in
Roane County, Tennessee, did unlawfully and intentionally or knowingly
cause an assault to Sergeant Jerry Singleton, of the Kingston Police
Department, by use or display of a deadly weapon; that weapon was a
motor vehicle . . . .
[C]ount two, is that [the Defendant], on or about [August 6, 2017],
in Roane County, Tennessee, did unlawfully, while operating a motor
vehicle on any street, road, alley, or highway, in the State of Tennessee, did
intentionally flee, or attempt to [e]lude a law enforcement officer, Sergeant
Jerry Singleton, of the Kingston Police Department, after having received
any signal from the Officer to bring the vehicle to a stop. And the flight did
create a risk of death, or injury, to innocent by-standers, per[su]ing law
enforcement officer and other third parties . . . .
[C]ount three, the stipulation is that [the Defendant], on or about
[August 6, 2017], in Roane County, Tennessee, did unlawfully, and
recklessly, engage in conduct that placed another person, that person was
Anthony Moore, Jr., in imminent danger of death, or serious bodily injury,
and that conduct was committed with a deadly weapon; this deadly weapon
was a motor vehicle . . . .
At the November 1, 2018 sentencing hearing, Margaret Gore, a Probation and
Parole Officer with the Tennessee Department of Correction, testified that she prepared a
presentence investigative report pertaining to the Defendant. She identified the report,
which was admitted as an exhibit to the hearing without objection. She read the
statement the Defendant provided to her into the record. The Defendant stated as
follows:
I was towing a car to Midtown to sell it and on the way back it was dark
and light. Singleton blue-lighted the truck behind me. Donald Goldberg
was driving that truck. And the officer came up to the defendant’s truck
and I was already nervous and scared due to previous charges from 2013,
and I knew I had warrants. So I saw his hand, the police officer, on his
pistol and asked what seems to be the problem tonight, and I said, why did
you pull me over. The officer asked for the license and registration. I
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stomped the gas and the policeman may have been reaching in to turn off
the ignition, I was scared and pill sick so I – so was not thinking clearly. At
no time did I acknowledge or realize there was a tow dolly on the back of
my vehicle. I guess the tow dolly struck him as I was pulling away. I did
not know he was hurt.
Officer Gore also performed a “Strong-R” evaluation on the Defendant and
concluded that he was high risk for violence if he was to be placed on community
supervision. She agreed that the Defendant did not have any felony convictions in his
criminal history; however, she noted several misdemeanor convictions. Officer Gore’s
report also reflected that the Defendant had been cited in the Roane County jail for two
disciplinary actions in December 2017 for verbal disrespect and in August 2018 for
contraband in the form of “tattooing.” Finally, she testified that the Defendant was on
county probation at the time of these offenses, had absconded from probation, and had
outstanding warrants for his arrest at the time of these offenses.
Officer Jerry Singleton of the Kingston Police Department testified that on the
date of the offense, he was responding to several calls about a possibly impaired driver
with lights out on an attached towing dolly. Officer Singleton observed a vehicle
matching the given description, initiated his blue lights, and pulled the Defendant over
attempting to effectuate a traffic stop. As Officer Singleton approached the Defendant’s
vehicle, he asked for the Defendant’s license and registration, and the Defendant replied
he did not have them. At the same time, the Defendant put his vehicle in gear and took
off. Officer Singleton said that the Defendant’s vehicle “kind of ran over [him]” and his
“world went upside down.” Officer Singleton noted that the Defendant’s vehicle, a
Dodge Dakota pick-up truck, had an average size towing dolly attached to the rear. He
said the dolly “caught [his] left leg, breaking [his] tibia and leaving [him] laying in the
middle of the” highway. Although it was after dark, Officer Singleton was certain that he
was visible to the Defendant when he pulled off. A video of the traffic stop showing how
the Defendant’s truck struck Officer Singleton was admitted into evidence as an exhibit
without objection.
As a result of his injuries, Officer Singleton spent two days in the hospital,
attended physical therapy for three months, and received personal counseling. He
incurred medical bills in excess of $28,000, most of which was covered by worker’s
compensation. He had accelerated arthritis and, based on medical advice, anticipated
knee surgery in eight to nine years. He was unable to work as a police officer for six
months and was forced to resign from his part-time job as a bus driver. He testified that
the incident greatly impacted his personal life and hindered several of his outside
activities. He confirmed that he provided a victim impact statement to the probation and
parole officer in this case.
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Officer Singleton’s wife, Jennifer Singleton, also testified regarding how this
incident impacted their family. Significantly, the day the Defendant ran over her
husband’s leg was their first wedding anniversary. She observed that her husband had
“work[ed] extremely hard to make his way back but just to 96 percent. He will never be
a hundred percent. He will always have pain, he will always have issues . . . . He still
walks with a limp which is going to cause him to blow out his other leg eventually.”
The State offered into evidence certified copies of the Defendant’s convictions
that were reflected in the presentence report without objection. The record shows that the
Defendant had a criminal history consisting of the following: seven convictions of
driving on a suspended, cancelled, or revoked license; four convictions of evading arrest;
two convictions of failure to stop at the scene of an accident; resisting arrest; assault;
criminal impersonation; reckless driving; reckless endangerment; use of false
identification; unauthorized use of a vehicle or joyriding; and several violations of
probation.
Garry Kerley, a retired officer of the Kingston Police Department, testified as to
his experience attempting to serve outstanding warrants on the Defendant sometime in
2013. Upon seeing Officer Kerley in a marked patrol car, the Defendant, as a passenger
in a vehicle, exited the vehicle and jumped onto a bridge. Officer Kerley pursued the
Defendant, as he ran away from him on foot. Officer Kerley said the Defendant
eventually jumped into a river and swam across it trying to get away. In apprehending
the Defendant, another officer was forced to use his taser to take him into custody. On
another occasion, the Defendant was at a friend’s home late at night. When Officer
Kerley told the Defendant of the outstanding warrant for his arrest, the Defendant became
verbally abusive. Officer Kerley was forced to pepper spray him. On yet another
occasion when he attempted to serve a warrant, the Defendant engaged in “a little bit of a
scuffle” with Officer Kerley before complying with his commands.
The Defendant testified and apologized to Officer Singleton and his family. He
admitted that he was attempting to evade arrest that night; however, he said he did not
intend to hurt Officer Singleton. He admitted to his prior convictions as listed in the
presentence report and emphasized that they were all misdemeanors. Prior to this
offense, he was working in the oil fields of North Dakota. He explained that his mother
passed away in 2015, and his father passed away in 2016. He said he stayed with his
sister in North Dakota, his only remaining family. Apparently, upon returning to
Tennessee, the Defendant “got on the pain medication and stuff and just – I – when I lost
my parents I just kind of give up.” The Defendant was diagnosed with ADHD as a child.
On cross-examination, the State confirmed the Defendant’s criminal history and
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emphasized the convictions that involved the Defendant fleeing from the police and the
harm it caused the community.
Following argument of counsel, the trial court issued an oral ruling and sentenced
the Defendant, as a Range I standard offender, to six years for the aggravated assault, a
Class C felony, four years for the evading arrest, a Class D felony, and two years for the
reckless endangerment, a Class E felony. The trial court ordered these sentences to be
served consecutively based on the Defendant’s extensive criminal history and the fact
that the Defendant was on probation at the time he committed the instant offenses. The
Defendant filed a timely notice of appeal and is now properly before this court for
review.
ANALYSIS
Although the Defendant challenges the propriety of consecutive sentencing, he
does not appear to challenge any specific aspect of the trial court’s consecutive
sentencing order. Instead, the Defendant relies on general sentencing principles and
claims that his sentence was “greater than that deserved for the offense committed,” not
“justly deserved in relation to the offense,” and not “the least severe measure necessary to
achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. §§ 40-35-
102(1) and -103(2), (4); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). In
support of this claim, the Defendant points out that while his actions constitute three
separate criminal convictions, they arose from a single criminal episode. “Based on the
singularity of his actions,” the Defendant argues that the trial court erred in consecutive
sentencing. In response, the State contends, and we agree, that the trial court properly
imposed consecutive sentencing.
An abuse of discretion with a presumption of reasonableness standard of review
applies to a trial courts’ decisions regarding consecutive sentencing. State v. Pollard, 432
S.W.3d 851, 859 (Tenn. 2013). “So long as a trial court properly articulates reasons for
ordering consecutive sentences, thereby providing a basis for meaningful appellate
review, the sentences will be presumed reasonable and, absent an abuse of discretion,
upheld on appeal.” Id. at 862 (citing Tenn. R. Crim. P. 32(c)(1); State v. Bise, 380
S.W.3d 682, 705 (Tenn. 2012)). This court must give “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).” Pollard, 432 S.W.3d at 861. As relevant here, a
trial court may order sentences to run consecutively pursuant Tennessee Code Annotated
section 40-35-115 if the court finds by a preponderance of the evidence that “[t]he
defendant is an offender whose record of criminal activity is extensive” or “the defendant
is sentenced for an offense committed while on probation.” Tenn. Code Ann. §§ 40-35-
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115(b)(2), (6). “[A]n extensive criminal history, standing alone, is enough to justify the
imposition of consecutive sentencing.” State v. Nelson, 275 S.W.3d 851, 870 (Tenn.
Crim. App. 2008) (citing State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App.
1997)).
Upon our review, we conclude that the trial court properly imposed consecutive
sentencing in this case. At the hearing, the probation officer testified as to the
Defendant’s extensive criminal history. The State also introduced certified copies of the
Defendant’s multiple convictions, with supporting arrest warrants, and probation
violations. Although the Defendant’s criminal history consisted primarily of
misdemeanors, the Defendant had a pattern of evading arrest from law enforcement
officers, confronting law enforcement, and causing potential harm to them and the public.
After several encounters with law enforcement, the Defendant was stopped by Officer
Singleton, evaded arrest, and seriously injured Officer Singleton in the process. The
Defendant was also on probation at the time he committed the instant offenses. Either of
these grounds, the Defendant’s extensive criminal history or his probationary status at the
time of the offense, support the trial court’s imposition of consecutive sentencing. See
Nelson, 275 S.W.3d at 870. Although the Defendant argues that consecutive sentencing
was improper because his convictions arose from the same criminal episode, we disagree.
See Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976) (“reject[ing] petitioner’s argument
that in determining whether to sentence a defendant to consecutive sentences, the trial
judge is required to take into consideration the fact that all of the offenses arose out of
one single criminal episode”); State v. Palmer, 10 S.W.3d 638 (Tenn. Crim. App. 1999).
Accordingly, the trial court did not abuse its discretion in ordering the Defendant to serve
his sentences in this case consecutively. The Defendant is not entitled to relief.
CONCLUSION
Upon our review, we affirm the judgments of the trial court.
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CAMILLE R. MCMULLEN, JUDGE
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