State of Tennessee v. Billy McCarty Amyx ( 2019 )

11/20/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
September 24, 2019 Session
STATE OF TENNESSEE v. BILLY MCCARTY AMYX
Appeal from the Criminal Court for Hawkins County
No. CC16CR75 Alex E. Pearson, Judge
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No. E2018-01733-CCA-R3-CD
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A Hawkins County jury convicted the Defendant, Billy McCarty Amyx, of filing a false
report and fabricating evidence, and the trial court imposed an effective sentence of six
years in the Tennessee Department of Correction. The Defendant appeals, asserting that
the evidence does not support his convictions and that the trial court abused its discretion
when it ordered him to serve six years. After review, we affirm the trial court’s
judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT H. MONTGOMERY, JR., JJ., joined.
George Todd East, Kingsport, Tennessee, for the appellant, Billy McCarty Amyx.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Dan E. Armstrong, District Attorney General; and Ryan Blackwell,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
This case arises from unsubstantiated allegations that Jeremy Weaver shot the
Defendant. A Hawkins County grand jury indicted the Defendant for filing a false report
and fabricating evidence. At the trial on these charges, the parties presented the
following evidence: Former Hawkins County Sheriff’s Department deputy Myran
Southerland testified that on March 18, 2016, he was dispatched at around 3:00 p.m. to a
residence on Woodland Lane regarding a “[shots] fired complaint.” Upon arrival, Mr.
Southerland found the Defendant lying against a building with a gunshot wound to his
hand. The Defendant told Mr. Southerland that John Weaver, his ex-girlfriend’s new
boyfriend, had shot him.
Hawkins County Sheriff’s Department Detective Keith Long testified that he
reported to an address on Woodland Lane in reference to a shooting. Upon arrival, other
officers informed Detective Long that the Defendant was the owner of the residence and
had been shot by John Weaver. Detective Long collected samples of blood “droplets”
found on the roadway in front of the Defendant’s mobile home and shell casings. The
Defendant had already been transported to Holston Valley Medical Center for treatment
when Detective Long arrived, but the detective spoke with Gregg Mitchell, who had been
present during the shooting.
Detective Long recalled that Mr. Mitchell stated that he had been helping the
Defendant repair his roof. Mr. Mitchell was inside a shed getting more screws when he
heard what sounded like an argument followed by gunshots. He went outside and saw a
“smaller” black car with a Toyota sticker “across the top of it.” Mr. Mitchell recognized
the driver as John Weaver. Detective Long did not speak to any other witnesses at the
scene but took several photographs, which he identified for the jury.
Detective Long testified that after photographing the scene, interviewing Mr.
Mitchell, and collecting evidence, he went to Holston Valley Medical Center to speak
with the Defendant. The Defendant provided a statement to Detective Long, who wrote
down the Defendant’s statement for him. He then read the statement to the Defendant,
and the Defendant confirmed that the statement was accurate before signing it. Detective
Long read the statement to the jury as follows:
Today around 3 p.m., me and my friend, Greg Mitchell, were
working on a shed at my house. Greg had went inside the shed, and I was
coming off the ladder. I saw a dark black or a dark blue car with Toyota
across the top of the windshield. The car was going toward Church Hill
and was going real slow. I knew the car belonged to John Weaver. He
drives through there a lot but had never stopped. I know John because my
ex-girlfriend, Rebecca, is living with him. John stopped in the road. His
driver’s window was down, and he started telling me he was taking care of
my ex and saying things about me. I started walking toward the road. He
said when I got to jail next month he was going to take care of my 19-
month-old daughter like a real man should.
I jumped over my chain link fence and intended to punch him. I saw
his right hand come up . . . and saw a gun. With my left hand I started
reaching toward the gun that was now pointed at my face. I remember
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noticing that John had black gloves on. I grabbed at the gun to keep from
getting shot in the face. The gun went off, and I spun around and hit the
ground. I grabbed the bumper and started around the back of the car and
went toward the passenger side.
I think John was taking his seatbelt off, and then he pointed the gun
at me but the window was up.
I heard my friend, Greg, yelling, and John sped off, almost running
over my foot.
My friend, Greg, was at the fence, and I realized then I’d been shot.
While I was on the ground after the first shot, I heard at least two more.
Greg pulled the fence down and helped me over, and then he called
911.
While at the hospital, Detective Long observed the Defendant’s injuries. He
recalled that it appeared that the Defendant had a gunshot wound to his left hand,
describing it as a “through and through shot.” Detective Long identified photographs
taken of the Defendant’s injuries at the hospital.
Detective Long testified that he contacted the Johnson City Police Department and
asked that an officer be dispatched to Mr. Weaver’s address to detain him for
questioning. When Detective Long arrived at the residence, Mr. Weaver was detained in
the back of one patrol vehicle and Rebecca Roberts, the Defendant’s ex-girlfriend, was
detained in a separate patrol vehicle. Detective Long spoke with Mr. Weaver, informing
him that he had been accused of shooting the Defendant. Detective Long stated that Mr.
Weaver appeared confused but was “very cooperative” with the investigation. Mr.
Weaver consented to a search of his residence and vehicle.
Detective Long testified that, in Mr. Weaver’s garage, he found a dark-colored
Scion with a Toyota sticker across the top of the windshield. As he inspected the vehicle
he saw blood in areas consistent with the Defendant’s version of the events. Detective
Long proceeded to the passenger side of the vehicle and noticed that the car door had
been opened “and two shell casings had fallen from the inside of the vehicle and were
laying [sic] on the ground beside the car.” He clarified that the shell casings were .22
caliber. Detective Long also found “droplets” of blood on the driver’s side of the car,
blood on the passenger side of the vehicle and blood at the top of the passenger side
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window. Detective Long found weapons during the search of the residence but did not
find a .22 caliber weapon.
Detective Long testified that he had Mr. Weaver and Ms. Roberts transported to
the sheriff’s office for further questioning. Mr. Weaver “adamantly denied” any
involvement in the shooting; however, after interviewing Mr. Weaver and reviewing
“parts” of Mr. Weaver’s cell phone, Detective Long charged Mr. Weaver with attempted
murder.
In an attempt to confirm the Defendant’s allegations, Detective Long obtained
video surveillance from Mr. Weaver’s place of employment, Hutchinson Sealing
Systems, and information regarding the time he had clocked out of work on March 18,
2016. The State played a portion of the surveillance video that showed Mr. Weaver
leaving work in his car at 2:41 p.m. The video footage was consistent with the time
indicated on Mr. Weaver’s timecard. Additionally, Detective Long accessed the Google
location service on Mr. Weaver’s cell phone which showed that he was at his place of
employment in Church Hill, Tennessee at 2:41 p.m. Information accessed through Mr.
Weaver’s cell phone also indicated that Mr. Weaver was in Johnson City at Sam’s Club
from 3:16 p.m. to 3:38 p.m. on March 18, 2016, “driving” from 3:38 p.m. to 4:08 p.m.
and from 4:30 p.m. to 5:04 p.m. and, finally, at a Texas Roadhouse restaurant in Johnson
City, Tennessee, from 5:04 p.m. to 5:50 p.m.
Detective Long testified that he confirmed the location information recovered
from Mr. Weaver’s cell phone by obtaining surveillance video from the Sam’s Club that
showed Mr. Weaver in the Sam’s Club at 3:16 p.m. and a receipt time-stamped 3:27 p.m.
The shooting had been reported at 3:00 p.m., and the distance between the Sam’s Club
and the location of the shooting was thirty-one miles. Detective Long drove the distance
between the two locations in thirty-nine minutes. He reported driving the speed limit for
most of the drive, stating that he drove “with the flow of the traffic.”
Detective Long testified that he also accessed Mr. Weaver’s call history. The call
history showed that a call was placed on Mr. Weaver’s cell phone at 2:45 p.m. on March
18, 2016. The call duration was nine minutes and twenty-seven seconds. There were two
missed incoming phone calls from Gary Henard at 2:51 and 2:52 p.m. and then a ten
minute and fifty-five second phone call from Gary Henard at 3:03 p.m.
After obtaining this evidence, Detective Long began to question the timing of the
events so he spoke with Mr. Mitchell again. Detective Long informed Mr. Mitchell of
the discrepancies in the timing of the events. After interviewing Mr. Mitchell, Detective
Long reviewed the Hutchinson Sealing Systems surveillance video again. Mr. Mitchell
drove a 2005 Ford F-150 truck with two-tone gray paint and distinct wheels. The
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surveillance footage showed a truck that looked like Mr. Mitchell’s entering the
Hutchinson Sealing Systems parking lot at 2:35 p.m. In the video, a car parked next to
Mr. Weaver’s Scion drove away, and Mr. Mitchell’s truck parked in the empty space. An
individual exited the passenger side of Mr. Mitchell’s truck and stood on the driver’s side
of Mr. Weaver’s Scion. At 2:41 p.m., the video showed Mr. Weaver’s vehicle leaving
the parking space. Detective Long acknowledged that the video did not show the
individual on the passenger side of the Scion but explained that the video “skipped” and
there was a thirteen second gap in the recording beginning at the time the individual
could be seen standing at the driver’s side door of the Scion.
Detective Long testified that the blood collected at the shooting scene and from
Mr. Weaver’s Scion was sent to the Tennessee Bureau of Investigation (“TBI”) for
analysis. The DNA profile from both blood samples matched the Defendant’s DNA
profile.
Detective Long testified that the distance from the Hutchinson Sealing Systems
parking lot to the Defendant’s house was approximately three miles and took
approximately six minutes to drive. The distance between Hutchinson Sealing Systems
and Sam’s Club was approximately thirty-four miles.
Lisa Meadows, Director of Human Resources for Hutchinson Sealing Systems,
testified about the procedure used by hourly employees to check in and out of work. She
explained that the facility used a biometric screening time clock, which required an
employee to scan their hand in order to “clock in” or out for the day. According to the
business records, Mr. Weaver began his work day at 6:16 a.m. and concluded his day at
2:38 p.m.
Sam’s Club manager Chastity Piatt testified that Sam’s Club was a membership-
based wholesale club that provided members with a required membership card that must
be “swipe[d]” in order to make a purchase. Ms. Piatt identified an electronic journal
receipt that was housed in the company’s local data base. The document provided the
date, time, transaction number, club number, register identification, cashier number, and
membership information. Ms. Piatt identified a transaction made by John Weaver on
March 18, 2016, at 3:27 p.m. She also identified a “normal register receipt” that was
consistent with the information from the electronic journal receipt. Finally, Ms. Piatt
identified a “membership data base.” Employees can use the data base to access
information about member accounts. This document also reflected Mr. Weaver’s March
18, 2016 purchase.
John Weaver testified that he had worked in the machine shop at Hutchinson
Sealing Systems for fifteen years. On March 18, 2016, he worked the day shift from 6:30
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a.m. to 2:30 p.m. He arrived early to work and drank his coffee for a few minutes before
entering the building. At the end of the day, Mr. Weaver changed his shoes, clocked out,
and then walked out to his car with another employee, Fred Armstrong. Mr. Weaver
described for the jury where he had parked his car in the parking lot on that day.
Mr. Weaver testified that he made several phone calls as he drove up the interstate
on his way to Sam’s Club to get some pet supplies. One of the calls was to Total
Insurance regarding a recent medical procedure Mr. Weaver had undergone. Mr. Weaver
identified the Total Insurance phone number on the call log for his cell phone. The other
call was to Gary Henard, a fellow employee, who Mr. Weaver called to ask if he needed
anything from Sam’s Club. He and Mr. Henard had several missed attempts at contacting
one another by phone but ultimately connected at 3:03 p.m. and spoke for ten minutes
and fifty-five seconds. After Mr. Weaver finished his conversation with Mr. Henard at
approximately 3:13 p.m., he entered the Sam’s Club. Mr. Weaver bought the pet supplies
and then made the ten to twelve minute drive home. Mr. Weaver recalled that, at the
time, Ms. Roberts, who was a friend from work, was staying at his home while she found
an apartment of her own. Mr. Weaver denied that he and Ms. Roberts ever dated or were
romantically involved.
Mr. Weaver testified that, upon arriving home that day, he took a shower and
changed clothes, and then he and Ms. Roberts went to Texas Roadhouse restaurant for
dinner. After dinner, they made a few stops before returning home. After Mr. Weaver
parked his car in the garage, he decided to mow his back yard. He took out his mower
and began mowing the lawn when he noticed police cars on the road in front of his
residence. He stopped the mower and walked toward the front of the house and was met
by police officers who asked his name and then handcuffed him and placed him in a
patrol car.
Mr. Weaver testified that he waited in the patrol car for approximately an hour and
a half before Detective Long arrived and spoke with him. Mr. Weaver consented to
officers searching his residence and vehicle. After the officers finished the search, Mr.
Weaver was transported to the Hawkins County Justice Center where he again spoke with
Detective Long. Mr. Weaver recounted his day to the Detective, but the Detective told
Mr. Weaver that Mr. Weaver had gone to the Defendant’s house and shot him. Mr.
Weaver stated that he felt he was “being railroaded” and requested an attorney. Mr.
Weaver was returned to the holding cell and then processed for the charge of attempted
murder. Mr. Weaver was unable to pay the $750,000 bond, so he remained in jail for
nineteen days before his release.
Mr. Weaver testified that he hired an attorney who hired an investigator. Together
with Detective Long’s work, their investigation revealed a timeline that resulted in the
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dismissal of the charge against Mr. Weaver. Mr. Weaver testified that he did not know
the Defendant and had never met him before. He confirmed that he was aware that Ms.
Roberts had lived with the Defendant and that the two shared a child. Mr. Weaver stated
that he had never been to the Defendant’s residence, and he did not know where the
Defendant lived. Mr. Weaver denied owning a .22 caliber gun. He said that he owned a
9 millimeter handgun and two shotguns that he disclosed to Detective Long before the
officers searched his house.
Mr. Weaver testified that, in his experience, it is generally a forty-five minute
drive from his home to his work and more than a thirty minute drive from his place of
work to Sam’s Club.
Michael Smith, testifying for the defense, recalled installing carpet in the
Defendant’s home. He stated that it was before the March 18 “incident” but could not
remember how long before. While working at the Defendant’s residence, he saw a black
car driving down the road. When shown a picture of Mr. Weaver’s car, Mr. Smith agreed
that the car in the photograph resembled the car he had seen when working at the
Defendant’s residence. On cross-examination, Mr. Smith agreed that he considered the
Defendant a friend. Mr. Smith further agreed that he noticed the car because the
Defendant had stated, “There he goes again.” Mr. Smith was unable to see the driver of
the vehicle and did not see where the car went. On redirect examination, Mr. Smith
clarified that the black car had a white Toyota sticker on the windshield.
James Persinger, the Defendant’s neighbor, testified that he was seated on his
porch smoking on the afternoon of March 18, 2016, when he saw a black car with tinted
windows. The car was distinct because the windshield of the car had the word “Toyota”
in big, white letters. Mr. Persinger stated that he had seen this vehicle drive by on four or
five occasions but never saw the driver of the vehicle.
On cross-examination, Mr. Persinger confirmed that he lived “two doors down”
from the Defendant. Mr. Persinger agreed that he considered the Defendant his friend.
Mr. Persinger estimated that it took approximately forty or forty-five minutes to drive
from his house to Johnson City. He stated that it was not possible for him to drive that
distance in sixteen minutes.
Carrie Rymer testified that she cleaned the Defendant’s house on March 18, 2016,
arriving at around 9:30 a.m. When she arrived, the Defendant, “a bearded man,” and
“Jim Davis” were at the residence. She remained at the residence until 2:45 p.m. Ms.
Rymer recalled that about two weeks before the alleged shooting she saw a black car with
a Toyota sticker on the windshield drive slowly by the Defendant’s residence. The State
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showed Ms. Rymer a photograph of Mr. Mitchell’s gray truck and she denied seeing the
truck at the Defendant’s residence on March 18, 2016.
Jim Davis, the Defendant’s long-time friend, testified that he went to the
Defendant’s residence on March 18, 2016, to help him work on a “chicken building”
along with Greg Mitchell. Mr. Davis said that he arrived at the Defendant’s residence at
around 8:00 a.m. and left at 2:45 p.m. As Mr. Davis drove away from the Defendant’s
residence he passed a black Honda with a Toyota sticker across the windshield that he
had seen before in that area. He recalled seeing the black car drive slowly by the
Defendant’s residence.
Mr. Davis testified that several minutes after leaving the Defendant’s residence,
Mr. Mitchell called him and told him that the Defendant had been shot in the hand. Mr.
Davis returned to the Defendant’s residence and found the Defendant in the yard with his
shirt wrapped around his hand.
Clinton Rogers and Gary Short were driving home on Woodland Lane on March
18, 2016, when they saw something in the road. As they drove closer, they saw that it
was a person. Mr. Rogers, the driver, stopped the car to check on the man who was
“hollering” for the men to “to get some blue towels.” Mr. Rogers wrapped the blue
towels around the man’s bleeding hand to try to stop the blood flow. Mr. Rogers
described the man as being in shock and “panicky.” Mr. Short also perceived that the
man appeared to be in shock and noted that the man was in pain as evidenced by his
“moaning [and] groaning.” Mr. Rogers and Mr. Short helped the man out of the roadway
and stayed with him until police arrived.
In 2016, Joy Williams lived “a few houses” down from the Defendant. Ms.
Williams testified that she walked in the area near her home for exercise. She recalled on
March 18, 2016, that as she walked down the road, she observed the Defendant “doing
something on top of the building.” She walked further down the road and then turned
around and began the walk back when she heard the Defendant yelling. She could not
see the Defendant because a group of trees blocked her view, but when she reached a
point where she could see the Defendant, he had come down from the roof and was
walking toward the roadway. She then heard something that sounded like “fireworks” or
“a car backfiring.” She continued walking and a car drove by her at a fast rate, causing
Ms. Williams to jump “out of the road because [she] thought they were going to hit” her.
She said the car was black with tinted windows and a big, white Toyota sticker across the
windshield. Ms. Williams was unable to see the driver due to the speed and tinted
windows on the car. Ms. Williams stated that she had never seen that car in the
neighborhood before.
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Richard Arnold testified that in March 2016, he lived on Woodland Lane and that
he had known the Defendant most of his life. On March 18, 2016, he had mowed “the
trailer park” on Woodland Lane and was preparing to leave. As he pulled out on to
Woodland Lane, a black car, driving at a high rate of speed, almost hit him. The black
car had Toyota in white letters across the windshield.
After hearing this evidence, the jury convicted the Defendant of filing a false
report and fabricating evidence. At the sentencing hearing the trial court sentenced the
Defendant as a Range I, standard offender. The Defendant was convicted of filing a false
report, a Class D felony with a sentencing range of two to four years, and fabricating
evidence, a Class C felony with a sentencing range of three to six years for a standard
offender. The trial court found no mitigating factors applicable and applied three
enhancement factors: (1) the Defendant had a history of previous criminal convictions or
criminal behavior; (2) the Defendant possessed or employed a firearm during the
commission of the offense; and (3) the Defendant was released on pretrial bail at the time
he committed the offense in this case. The trial court imposed a sentence of four years
for the filing a false report conviction and six years for the fabricating evidence
conviction. Finding no basis to support consecutive sentencing, the trial court ordered
that the sentences run concurrently. In considering alternative sentencing, the trial court
found the Defendant’s acts of deception and manipulation “reprehensible” and
specifically stated that deterrence was necessary in denying an alternative sentence. It is
from these judgments that the Defendant appeals.
II. Analysis
On appeal, the Defendant makes seven claims, challenging the sufficiency of the
evidence or the weight of the evidence. For purposes of our review, however, we address
all of his claims under the sufficiency of the evidence standard. See State v. Adams, 916
S.W.2d 471, 473 (Tenn. Crim. App. 1995); State v. Burlison, 868 S.W.2d 713, 719
(Tenn. Crim. App. 1993). Additionally, he contends that the trial court abused its
discretion in sentencing. The State responds that the evidence is sufficient to support the
Defendant’s convictions and that the trial court did not abuse its discretion in ordering an
effective sentence of six years’ incarceration in this case. We agree with the State.
A. Sufficiency of the Evidence
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,
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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.
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
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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).
1. Filing a False Report
It is a criminal offense for a defendant to initiate a report or statement to a law
enforcement officer concerning an offense or incident within the officer’s concern,
knowing that the offense or incident did not occur or that the information relating to the
offense is false. See T.C.A. § 39-16-502(a)(1) (2014).
The evidence, considered in the light most favorable to the State, proved that, at
the scene of the shooting, the Defendant told former Deputy Southerland that Mr. Weaver
had shot him. The Defendant identified the same perpetrator to Detective Long at the
hospital and after review of his statement to Detective Long regarding the incident,
signed the document evidencing his affirmation of the statement. As a result, Mr.
Weaver was arrested and incarcerated for nineteen days before the investigation revealed
a sufficient alibi for Mr. Weaver. Evidence obtained from multiple businesses proved
that Mr. Weaver was at locations a significant distance from the Defendant’s residence
and engaged in phone calls during the time period the Defendant claimed he was shot by
Mr. Weaver. This evidence shows that the Defendant identified Mr. Weaver as the
shooter when he knew that the information was false.
The Defendant challenges his identity as the perpetrator based upon circumstantial
evidence. We note that the Defendant relies on old law regarding circumstantial
evidence. As stated above, “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)). The Defendant argues that the poor quality of the Hutchinson
Sealing Systems surveillance video does not “establish the identity of the individual
shown to be walking around” and thus the evidence is insufficient to support this
conviction. The identification of a defendant is a question of fact for the determination of
the jury after consideration of the proof. State v. Strickland, 885 S.W.2d 85, 87 (Tenn.
Crim. App. 1993) (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App.
1982)). The State’s evidence showed that the Defendant was with Mr. Mitchell on the
day of the shooting. The jury watched surveillance video of a truck that looked like Mr.
Mitchell’s truck parked next to Mr. Weaver’s Scion and the passenger of the truck
walking around the Scion. TBI DNA testing matched the blood on Mr. Weaver’s Scion
with the Defendant’s DNA. By its verdict, the jury accredited the testimony of the
State’s witnesses and made reasonable inferences based upon the circumstantial
evidence.
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The Defendant also makes an argument that the false report must be related to an
“underlying crime” that the police are investigating and because the State’s theory of the
case was that the Defendant shot himself, there was no “underlying crime.” The relevant
statute, however, refers to false statements about “an offense or incident within the
officer’s concern.” T.C.A. § 39-16-502 (a)(2)(A). The report of a shooting to 911
constitutes an incident within an officer’s concern. The Defendant falsely identified Mr.
Weaver to officers investigating the shooting. By providing a false statement about an
offense or incident within the officer’s concern, the Defendant hindered the officer from
investigating the incident. Further, the Defendant’s false statement facilitated his use of
the criminal justice system to torment a man whom the Defendant believed was dating his
ex-girlfriend.
Finally, the Defendant appears to make an attack on venue based upon the
Defendant’s statement at the hospital which he alleges is not in Hawkins County. We
agree with the State that the Defendant has waived any challenge to venue as it was not
identified in his motion for new trial. Nonetheless, the jury could properly consider the
Defendant’s statement to Detective Long at the hospital. Tennessee Rule of Criminal
Procedure 18 provides that an offense may be prosecuted in either county if elements of
an offense are committed in different counties.
Accordingly, we conclude that the evidence is sufficient to sustain the Defendant’s
conviction for making a false report to law enforcement. The Defendant is not entitled to
relief as to this issue.
2. Fabricating Evidence
The Defendant argues that there was no ongoing investigation at the time the
Hutchinson Sealing Systems surveillance video was recorded and thus, the evidence is
not sufficient to sustain his conviction for fabricating evidence. The State responds that
the Tennessee Supreme Court in State v. Smith, 436 S.W.3d 751 (Tenn. 2010, has
interpreted a pending investigation within the context of the fabricating evidence statute,
Tennessee Code Annotated section 39-16-503, to mean an investigation that is
“impending” or “about to take place” and as such, the evidence is sufficient to support
this conviction. Smith, 436 S.W.3d at 763. We agree with the State.
Tennessee Code Annotated section 39-16-503 provides that:
(a) It is unlawful for any person, knowing that an investigation or official
proceeding is pending or in progress, to:
. . . .
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(2) Make, present, or use any record, document or thing with knowledge of
its falsity and with intent to affect the course or outcome of the
investigation or official proceeding.
The evidence, viewed in the light most favorable to the State, proved that the
Defendant was with Mr. Mitchell on the day of the shooting. A truck that appeared to be
Mr. Mitchell’s can be seen on the Hutchinson Sealing Systems surveillance video parking
next to Mr. Weaver’s Scion at 2:35 p.m. A male exited the passenger side of the truck
and walked around to the driver’s side of Mr. Weaver’s Scion. The video contained
some gaps, one lasting thirteen seconds during the time the person can be seen standing
next to Mr. Weaver’s car. The Defendant’s blood was found on the driver’s side door,
trunk, and passenger window of Mr. Weaver’s Scion. The Defendant reported to police
these locations as points of contact after he had been shot. The investigation revealed the
course of Mr. Weaver’s day after leaving work at 2:41 p.m., placing him at locations that
are significant distances from the Defendant’s residence at the time of the shooting.
From this evidence, a jury could draw reasonable inferences that the Defendant went to
Mr. Weaver’s place of work and placed his blood on Mr. Weaver’s car in preparation for
the impending investigation and with the intent to have Mr. Weaver arrested for an
alleged shooting.
Accordingly, we conclude that there is sufficient evidence from which the jury
could conclude, beyond a reasonable doubt, that the Defendant placed blood on Mr.
Weaver’s car with knowledge of its falsity as evidence that Mr. Weaver shot the
Defendant, and with the intent to affect the course or outcome of the investigation of the
shooting. The Defendant is not entitled to relief as to this issue.
B. Sentencing
The Defendant challenges the trial court’s sentencing decisions, arguing that the
trial court erred in imposing the statutory maximum sentence for each conviction and in
denying alternative sentencing. The State responds that the trial court did not abuse its
discretion when it sentenced the Defendant to an effective six years’ incarceration. We
agree with the State.
Appellate review of sentences is under the abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (2012); see also State
v. Caudle, 388 S.W.3d 273, 278-79 (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.’”
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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.; State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). In the
context of sentencing, as long as the trial court places the sentence within the appropriate
range and properly applies the purposes and principles of the Sentencing Act, this Court
must presume the sentence to be reasonable. Bise, at 704-07. As the Bise Court stated,
“[a] sentence should be upheld 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.” Id. at 708. We are also to recognize that the defendant bears
“the burden of showing that the sentence is improper.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991).
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 should consider enhancement and mitigating factors when
determining the appropriate sentence: however, the statutory enhancement factors are
advisory only. See T.C.A. § 40-35-114 (2012); see also Bise, 380 S.W.3d at 699 n.33,
704; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). 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 706
A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. T.C.A. § 40-35-303(a). A
defendant is not, however, automatically entitled to probation as a matter of law. The
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burden is upon the defendant to show that he or she is a suitable candidate for probation.
T.C.A. § 40-3-303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997);
State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this
burden, the defendant “must demonstrate that probation will ‘subserve the ends of justice
and the best interest of both the public and the defendant.’” State v. Bingham, 910
S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259
(Tenn. Crim. App. 1990)).
There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis considering “the nature of the offense and the totality of the
circumstances . . . including a defendant’s background.” State v. Ashby, 823 S.W.2d
166, 168 (Tenn. 1991) (quoting State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). In
determining if incarceration is appropriate in a given case, a trial court should consider
whether:
(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
(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). 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 trial court determined the Defendant should be sentenced as a Range I,
standard offender. Then, after considering the principles of the Sentencing Act and the
arguments for and against the mitigating and enhancement factors proposed by the
parties, the trial court imposed within-range sentences. The sentencing range for a Range
I sentence for filing a false report, a Class D felony, is two to four years, and the trial
court imposed a sentence of four years. The sentencing range for a Range I sentence for
fabricating evidence, a Class C felony, is three to six years, and the trial court imposed a
sentence of six years. The trial court stated its reasons for imposing these sentences on
the record, and those reasons were consistent with the principles and purposes of the
Sentencing Act.
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The trial court applied enhancement factor (1), that the Defendant had a previous
history of criminal convictions or behavior in addition to what was necessary to establish
him as a Range I offender. T.C.A. § 40-35-114. The presentence report shows that the
Defendant has two prior felony convictions thereby supporting the trial court’s
application of this factor. In this case, the trial court found two additional factors to
support sentences that were the maximum within the range. The trial court also applied
enhancement factor (9), that the Defendant possessed or employed a firearm, explosive
device, or other deadly weapon during the commission of the offense. T.C.A. § 40-35-
114. The trial court did not give much weight to this factor but based upon the facts at
trial, concluded that the Defendant either actually or constructively possessed the gun that
inflicted his gunshot wound. Finally, the trial court applied enhancement factor (13), that
the Defendant was released on bail at the time of the offense and was ultimately
convicted of the prior misdemeanor or felony. Id. We note that “a trial court could
increase the sentence to the maximum within the range if it found even a single
enhancement factor.” State v. Cross, 362 S.W.3d 512, 528 (Tenn. 2012); see also, State
v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012) (holding, enhancement of a sentence does not
necessarily require the application of an enhancement factor provided that there are other
reasons consistent with the purposes and principles of sentencing). Based upon our
review, the record supports the trial court’s decisions with regard to the length of the
sentences.
As to the trial court’s denial of an alternative sentence, the Defendant argues that
the trial court failed to make the additional findings articulated in State v. Hooper, 29
S.W.3d 1, 13 (Tenn. 2000), related to a finding of deterrence as a basis to deny an
alternative sentence. The State responds that that the additional findings per Hooper are
only required when it is the sole basis for the trial court’s denial of an alternative sentence
and, in this case, while the trial court explicitly found deterrence as a factor, the trial
court implicitly found that confinement was necessary to avoid depreciating the
seriousness of the offense. We agree with the State.
At the sentencing hearing, the trial court spoke at length about the circumstances
of the offense, describing the Defendant’s conduct as “reprehensible.” The trial court
noted that, but for the timeline developed by Detective Long based on receipts and
surveillance video, “it’s likely that instead of you standing here being convicted, it would
be the other way around, which would be a terrible miscarriage of justice given what the
jury found.” The trial court went on to describe the Defendant’s actions and the
immediate police response required of such an allegation, as well as the detailed plan and
intention required to plant blood evidence in preparation for the execution of the plan to
frame an innocent person. The trial court then distinguished this case from the fact
patterns in other cases where a defendant claims their car was stolen in an attempt to
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evade a DUI charge, in contrast to this case, which involved using the criminal court
system to inflict harm on an innocent person.
Consideration as to whether confinement is necessary to avoid depreciating the
seriousness of the offense and/or particularly suited to provide effective deterrence to
others likely to commit similar offenses are valid considerations under Tennessee Code
Annotated section 40-35-103. When denying probation on the sole basis of the offense
itself, “the circumstances of the offense as particularly committed in the case under
consideration must demonstrate that the defendant committed the offense in some manner
more egregious than is contemplated simply by the elements of the offense.” State v.
Trent, 533 S.W.3d 282, 292-93 (Tenn. 2017). This necessarily requires the trial court to
examine and make findings regarding the particular circumstances surrounding the
defendant’s commission of the convicted offenses.
In our view, the trial court denied the Defendant probation to avoid depreciating
the seriousness of the offense and to provide effective deterrence to others likely to
commit similar offenses. In the course of its ruling, the trial court properly examined and
made findings regarding the egregious circumstances of the crimes. “[A] trial court’s
decision to grant or deny probation will not be invalidated unless the trial court wholly
departed from the relevant statutory considerations in reaching its determination.” State
v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014). The Defendant has not shown the
order of incarceration in this case “wholly departed from the relevant statutory
considerations.” As such, the Defendant is not entitled to relief on this issue.
Accordingly, because the trial court imposed sentences within the appropriate
range, considered the purposes and principles of the Sentencing Act, and considered the
applicable enhancement and mitigating factors, we uphold the trial court’s effective
sentence of six years of confinement.
III. Conclusion
After a thorough review of the record and the applicable law, we affirm the trial
court’s judgments.
____________________________________
ROBERT W. WEDEMEYER, JUDGE
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