State of Tennessee v. Michael David Carter and Steven Edward Carter ( 2019 )

08/16/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 19, 2019
STATE OF TENNESSEE v. MICHAEL DAVID CARTER AND
STEVEN EDWARD CARTER
Appeal from the Criminal Court for Sumner County
No. 240-2016, 231-2016 Dee David Gay, Judge
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No. M2018-01329-CCA-R3-CD
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Following a jury trial, Michael David Carter (Michael Carter) was convicted of
aggravated robbery and aggravated assault and Steven Edward Carter (Steven Carter)
was convicted of facilitation of aggravated robbery and aggravated assault. Michael
Carter was sentenced to twenty years for aggravated robbery, and Steven Carter was
sentenced to nine years for facilitation of aggravated robbery. The trial court merged the
aggravated assault convictions into the aggravated robbery convictions without imposing
a sentence or entering a judgment of conviction for aggravated assault. On appeal,
Defendants contend that: (1) the evidence presented at trial was insufficient to support
their convictions; (2) the prosecutor improperly made a “Golden Rule” closing argument;
and (3) the trial court erred in applying Tennessee Rules of Evidence 608 and 609 to
exclude evidence of criminal charges pending against the victim at the time of trial.
Michael Carter also contends that the trial court erred in sentencing him as a Range II
offender and that his sentence was excessive. We remand for sentencing on the merged
aggravated assault convictions and entry of a judgment of conviction for each Defendant
pursuant to State v. Berry, 503 S.W.3d 360 (Tenn. 2015). We affirm the judgments of the
trial court in all other respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
and Remanded
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and D. KELLY THOMAS, JR., J., joined.
Michael W. Taylor (on appeal), and Michael Pickering (at trial), Gallatin, Tennessee, for
the appellant, Michael David Carter.
Christopher V. Boiano (on appeal), Hendersonville, Tennessee, and Thomas Boyers (at
trial), Gallatin, Tennessee, for the appellant, Steven Edward Carter.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Assistant Attorney General; Ray Whitley, District Attorney General; and Lytle Anthony
James, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural Background
Procedural History
The Sumner County Grand Jury indicted Michael Carter and Steven Carter for
aggravated assault and aggravated robbery. Although Defendants were indicted
separately, the trial court consolidated their cases, and Defendants proceeded to a jury
trial.
Trial Testimony
On January 25, 2016, Jennifer Key received a call from the victim, Coty Brimm,
asking her to pick him up at a gas station in Gallatin. She drove from Portland to Gallatin
and picked up Mr. Brimm. On the way back to Mr. Brimm’s residence in Portland, they
stopped at another gas station to get some towels because Mr. Brimm’s hand was
bleeding from a cut that he received during a fight with his brother earlier in the day.
They made a second stop to get Band-Aids.
Once home, Mr. Brimm called Michael Carter in an attempt to sell him a
computer. Michael Carter initially declined, but he called back a short time later and told
Mr. Brimm, who was a tattoo artist, to bring his tattoo equipment to Michael Carter’s
residence because he needed “a hundred dollars[’] worth of tattoo work.” Mr. Brimm
told Ms. Key that he would give her some money if she took him to Michael Carter’s
residence.
Mr. Brimm rode with Ms. Key to Michael Carter’s home. After they entered the
residence, Ms. Key was talking to Steven Carter when she heard Michael Carter and Mr.
Brimm arguing. She saw Michael Carter point a pistol at Mr. Brimm. According to Ms.
Key, Steven Carter said, “Don’t worry brother[,] I got this” and he tried to diffuse the
situation by asking Michael Carter to put the gun down. Ms. Key stated that Michael
Carter was holding the pistol in one hand and using a cell phone in the other hand to
video Mr. Brimm’s begging not to be shot. Michael Carter told Mr. Brimm to take off
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his jewelry. Ms. Key helped Mr. Brimm take off his necklace, and she placed it on the
barrel of the pistol that Michael Carter was holding. Michael Carter then made Mr.
Brimm empty his pockets. In addition to the necklace, Michael Carter took Mr. Brimm’s
rings, money, wallet, cell phones, and tattoo equipment. Afterwards, Ms. Key and Mr.
Brimm were allowed to leave and returned to Mr. Brimm’s home.
About two hours later, Ms. Key drove Mr. Brimm to the Portland Emergency
Room because he was having significant pain. After they arrived at the emergency room,
Ms. Key left to get food. When she returned, Deputy Brian Gambino of the Sumner
County Sheriff’s Office was taking a statement from Mr. Brimm about the incident that
occurred at Michael Carter’s residence. Ms. Key also gave Deputy Gambino a statement
about the incident.
On cross-examination, Ms. Key testified that when she arrived at Michael Carter’s
house, she found out that Michael Carter believed Mr. Brimm had stolen his cell phone.
Ms. Key did not see Steven Carter strike Mr. Brimm.
At the beginning of the State’s direct examination, Mr. Brimm agreed that he was
currently in jail for a probation violation. He explained that he “was sent to rehab, and
[he] left early without permission.” Mr. Brimm pled guilty to escape. Mr. Brimm also
pled guilty to theft under five hundred dollars in Davidson County on October 21, 2016.
Mr. Brimm claimed that he was addicted to methamphetamine and prescription pills.
Mr. Brimm testified that, on January 25, 2016, he did not have any money, so he
called Michael Carter to see if he would buy Mr. Brimm’s girlfriend’s computer.
Michael Carter declined and hung up. Michael Carter called Mr. Brimm back within ten
minutes and said that he had some tattoo work that Mr. Brimm could do at Michael
Carter’s home. Mr. Brimm and Ms. Key took his tattoo equipment to Michael Carter’s
home.
Mr. Brimm said he walked into Michael Carter’s residence, shook Steven Carter’s
hand, turned to shake Michael Carter’s hand, and Steven Carter hit him. Mr. Brimm fell
to the floor, and when he tried to stand up, he saw that Michael Carter was pointing a
pistol at him. Mr. Brimm said he “balled up,” and Steven Carter continued to hit and
kick him for about two minutes. After the beating stopped, Ms. Key helped Mr. Brimm
get into a chair. Mr. Brimm said Michael Carter had the pistol in one hand and a cell
phone in the other and told Mr. Brimm to “tell the world how much of a b***h you are.”
Mr. Brimm said he told Michael Carter that “[y]ou [will] have to shoot me first.”
Michael Carter then “loaded and [] cocked the gun,” after which Mr. Brimm complied
with his demand. Michael Carter recorded a video of the incident on his cell phone and
uploaded it to Facebook. The video was played for the jury and admitted into evidence.
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Mr. Brimm asked Michael Carter if they could leave. Michael Carter told Mr.
Brimm that “he needed everything out of [Mr. Brimm’s] pockets and his jewelry.” When
Mr. Brimm could not get his necklace off, Michael Carter told Ms. Key to help Mr.
Brimm. Mr. Brimm stated that Defendants took his necklace, rings, money, wallet, cell
phones, and tattoo equipment. Shortly afterwards, Mr. Brimm and Ms. Key were allowed
to leave.
Mr. Brimm testified that the reason his eye was a little red in the video on
Facebook was because Michael Carter had kicked him. Mr. Brimm identified the
necklace that he was wearing in the video as the necklace that Michael Carter took from
him. Mr. Brimm testified that the video showed him holding his left side with his hands
because “that [wa]s where [he] got kicked.” Mr. Brimm testified that, before the beating
started Michael Carter accused him of stealing his cell phone.
Mr. Brimm said Ms. Key drove him to the emergency room the next day because
he was “throwing up blood.” He stated that he had multiple bruises on his left side, a
collapsed left lung, and injury to his left eye and left side ribs. At the emergency room,
he gave a statement to Deputy Gambino, who was dispatched to the hospital to
investigate an assault. When Deputy Gambino asked about the cut on his hand, Mr.
Brimm lied and told Deputy Gambino that the cut happened at Michael Carter’s home.
Deputy Gambino came to Mr. Brimm’s home the next day. Mr. Brimm informed
Deputy Gambino about the video Michael Carter uploaded on Facebook. When Deputy
Gambino again asked Mr. Brimm about the injury on his hand, Mr. Brimm told Deputy
Gambino that the injury might have happened at Michael Carter’s residence.
On cross-examination, Mr. Brimm testified that he lied to Deputy Gambino on
both occasions concerning the cut on his hand. Mr. Brimm actually sustained the injury
earlier in the day on January 25, 2016, during an altercation with his brother.
Ashley Colonello, Mr. Brimm’s ex-girlfriend, testified that she was incarcerated at
the Davidson County Jail. She said she regularly spoke to Mr. Brimm by phone. In
January 2016, she called Mr. Brimm’s phone from the jail, but Michael Carter answered.
Michael Carter told her, “We warmed [Mr. Brimm] up real good. He was crying like a
little girl[.]” Michael Carter told her that she was calling “a phone that wasn’t [Mr.
Brimm’s] phone, and [that] it was his phone and he got it back.” Michael Carter also told
Ms. Colonello that she did not have to worry about paying off her debt to Michael Carter
because he “made [Mr. Brimm] pay for it.” Ms. Colonello explained that Michael Carter
believed she owed him money because of a bad drug deal. Ms. Colonello also testified
that “[Michael Carter] said, ‘you know, you should see the video I have got of [Mr.
Brimm] now,’” referring to the video uploaded on Facebook. The phone conversation
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between Ms. Colonello and Michael Carter was recorded, and the recording was admitted
into evidence and played for the jury.
Deputy Gambino testified that he spoke to Mr. Brimm on January 26, 2016, after
receiving a call from dispatch advising that there had been an assault and that the victim
was at the Portland Emergency Room. Deputy Gambino obtained a written statement, in
which Mr. Brimm claimed that when he walked through the door at Michael Carter’s
home, Steven Carter hit him and knocked him to the ground, and Michael Carter
threatened him with a gun. Mr. Brimm said Michael Carter took his necklace, rings,
money, wallet, knife, cell phones, and tattoo equipment. Mr. Brimm told Deputy
Gambino that he sustained a collapsed lung from the assault. Deputy Gambino took
photographs of Mr. Brimm at the emergency room, which the State admitted into
evidence.
Deputy Gambino testified that Mr. Brimm originally claimed the cut on his hand
must have happened at some point during the altercation at Michael Carter’s home. On
January 27, 2016, Deputy Gambino learned that the cut occurred earlier on January 25,
2016, in Lebanon. Deputy Gambino later contacted the Lebanon Police Department and
received a copy of an incident report concerning Mr. Brimm and his brother.
Deputy Gambino went to Michael Carter’s home on January 27, 2016, to speak
with Defendants. He noticed that Michael Carter was wearing the necklace that matched
the one described by Mr. Brimm. Michael Carter denied Mr. Brimm had been assaulted
at his home, claiming that he did not touch Mr. Brimm and the incident “never
happened[.]” Michael Carter then said that “even if [it did happen], that it happened
inside the house and [Mr. Brimm] was trying to steal from him.” When pressed by
Deputy Gambino, Michael Carter responded, “Well [Mr. Brimm] was trying to steal and I
may have slapped [him] but it was open handed.” Deputy Gambino also stated that none
of the property taken from Mr. Brimm was found in the possession of Steven Carter.
Based on this proof, the jury convicted Michael Carter of aggravated assault and
aggravated robbery and Steven Carter of aggravated assault and facilitation of aggravated
robbery.
Sentencing Hearing
At the outset of the sentencing hearing, the trial court merged Michael Carter’s
aggravated assault conviction into his conviction for aggravated robbery and merged
Steven Carter’s aggravated assault conviction into his conviction for facilitation of
aggravated robbery. A presentence report and certified copies of prior convictions for
each Defendant were introduced without objection.
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Steven Carter delivered an allocution statement in which he apologized to his
family and the court. He explained that he did not intend for anything to be taken from
Mr. Brimm and that he tried to prevent the incident from happening. He stated that his
brother, Michael Carter, did not intend to take anything from Mr. Brimm. Steven Carter
took full responsibility for his actions in the incident and stated that he understood the
law and the consequences of his actions.
The trial court stated that it had considered the evidence presented at the trial and
the sentencing hearing, the allocution of Steven Carter, the presentence reports, the
sentencing principles of Tennessee Code Annotated section 40-35-103, the nature and
characteristics of the criminal conduct involved, enhancement and mitigating factors, and
the arguments of counsel.
Regarding Michael Carter, the trial court found two applicable enhancement
factors: that he had a previous history of criminal convictions or criminal behavior in
addition to those necessary to establish the appropriate range and that he was a leader in
the commission of an offense involving two or more criminal actors. The court noted
that the presentence report showed that Michael Carter had four felony convictions,
including three separate aggravated assault convictions, and sixteen misdemeanor
convictions. In total, the court found Michael Carter had eleven convictions for crimes of
violence. The court found no applicable mitigating factors. The court sentenced Michael
Carter to twenty years for aggravated robbery to be served in the Tennessee Department
of Correction as a Range II, multiple offender. The court found that the sentence was
“justly deserved in relation to the seriousness of the offense [and] to promote respect for
the law.”
Based on the record, it does not appear that the trial court sentenced either
Defendant on the aggravated assault conviction, and no judgments of conviction were
executed or entered for the merged offenses. The trial court properly noted the mergers
in the “Special Conditions” box of the judgments of conviction for aggravated robbery
and facilitation of aggravated robbery.
After the trial court denied Defendants’ motions for new trial, Defendants timely
appealed.
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II. Analysis
A. Sufficiency of the Evidence
Michael Carter contends that the evidence presented at trial was insufficient to
support his convictions for aggravated assault and aggravated robbery. He argues that his
convictions are inconsistent because the jury found Steven Carter only guilty of
facilitation of aggravated robbery. Michael Carter also argues that because Mr. Brimm’s
recollection of the day of the incident was “foggy and untrustworthy[,]” this court should
overturn his convictions. The State responds that the evidence was sufficient to support
the convictions. We agree with the State.
Steven Carter contends that the evidence presented at trial was insufficient to
support his convictions for aggravated assault and facilitation of aggravated robbery.
More specifically, he argues that because the jury convicted him of facilitation of
aggravated robbery, a lesser included offense of aggravated robbery, the State’s theory
presented at trial regarding the charge of aggravated assault fails too. Like Michael
Carter, Steven Carter contends that his two convictions “required the jury to adopt factual
circumstances that [we]re mutually exclusive of one another.” Steven Carter also appears
to argue that his convictions should be overturned because the only testimony offered by
the State to support a finding of aggravated assault was the testimony of Mr. Brimm, who
did not testify that Steven Carter used or displayed a deadly weapon. The State responds
that if there were any inconsistencies in the verdicts, they do not affect the sufficiency of
the evidence of his convictions. We agree with the State.
Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing 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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “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)) (internal quotation marks omitted).
A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). A defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
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and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).
i. Michael Carter
As relevant here, “[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[.]” Tenn. Code Ann. § 39-13-
102(a)(1)(A)(iii) (2016). “A person commits assault who[] . . . [i]ntentionally, knowingly
or recklessly causes bodily injury to another[.]” Tenn. Code Ann. § 39-13-101(a)(1)
(2016).
Mr. Brimm testified that his eye was red in the Facebook video because Michael
Carter kicked him in the eye. Mr. Brimm and Ms. Key testified that Michael Carter held
a gun on Mr. Brimm. When viewed in the light most favorable to the State, the evidence
was sufficient for any rational trier of fact to find Michael Carter guilty beyond a
reasonable doubt of aggravated assault.
As charged here, aggravated robbery is a robbery that is “[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[.]” Tenn. Code Ann. § 39-13-402(a)(1)
(2016). “Robbery is the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a)
(2016).
Mr. Brimm and Ms. Key testified that Michael Carter held a gun on Mr. Brimm
and threated to kill Mr. Brimm if he did not comply with Michael Carter’s commands.
Mr. Brimm and Ms. Key testified that Michael Carter took Mr. Brimm’s necklace, rings,
money, wallet, cell phones, and tattoo equipment at gunpoint. When viewed in the light
most favorable to the State, the evidence was sufficient for any rational trier of fact to
find that Michael Carter used or displayed a deadly weapon to take property from Mr.
Brimm by violence or by putting Mr. Brimm in fear. This testimony fully supports
Michael Carter’s conviction for aggravated robbery.
ii. Steven Carter
Steven Carter argues that the only testimony offered by the State at trial to support
a finding of aggravated assault was the testimony of Mr. Brimm, who did not testify that
Steven Carter used or displayed a deadly weapon. Steven Carter’s argument fails to
recognize that he can be guilty of aggravated assault either by committing the aggravated
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assault himself or, as the trial court instructed the jury, by being criminally responsible
for the actions of Michael Carter.
“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.” Tenn. Code Ann. § 39-11-401(a) (2016). As
pertinent here, “[a] person is criminally responsible for an offense committed by the
conduct of another, if[,] . . . [a]cting with intent to promote or assist the commission of
the offense, or to benefit in the proceeds or results of the offense, the person solicits,
directs, aids, or attempts to aid another person to commit the offense[.]” Tenn. Code
Ann. § 39-11-402(2) (2016). Criminal responsibility is not a separate crime but instead a
theory by which the State may prove the defendant’s guilt based upon another person’s
conduct. State v. Osborne, 251 S.W.3d 1, 16 (Tenn. Crim. App. 2007) (citing State v.
Mickens, 123 S.W.3d 355, 389-90 (Tenn. Crim. App. 2003)).
“[U]nder the theory of criminal responsibility, presence and companionship with
the perpetrator of a felony before and after the commission of the crime are
circumstances from which an individual’s participation may be inferred.” State v.
Phillips, 76 S.W.3d 1, 9 (Tenn. Crim. App. 2001). In order to be convicted of the crime,
the evidence must establish that the defendant in some way knowingly and voluntarily
shared in the criminal intent of the crime and promoted its commission. State v. Maxey,
898 S.W.2d 756, 757 (Tenn. Crim. App. 1994); State v. Foster, 755 S.W.2d 846, 848
(Tenn. Crim. App. 1988).
Mr. Brimm testified that, after he walked into Michael Carter’s home, Steven
Carter hit him as he turned around to shake Michael Carter’s hand. Mr. Brimm also
testified that Steven Carter continued to hit and kick Mr. Brimm for about two minutes
while Michael Carter held a gun on Mr. Brimm. Mr. Brimm sustained a collapsed lung
and contusions on the left side of his body from the beating. When viewed in the light
most favorable to the State, the evidence was sufficient for any rational trier of fact to
find that Steven Carter knowingly and voluntarily shared in the criminal intent of the
crime and promoted its commission. Steven Carter was criminally responsible for the
aggravated assault committed by Michael Carter’s use of a deadly weapon. This
testimony supports Steven Carter’s conviction for aggravated assault.
We have previously set out the definitions of aggravated robbery and robbery. “A
person is criminally responsible for the facilitation of a felony, if, knowing that another
intends to commit a specific felony, but without the intent required for criminal
responsibility under § 39-11-402(2), the person knowingly furnishes substantial
assistance in the commission of the felony.” Tenn. Code Ann. § 39-11-403(a) (2016).
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The jury could also have reasonably inferred that Steven Carter provided
substantial assistance to Michael Carter by beating Mr. Brimm while Michael Carter held
Mr. Brimm at gunpoint and then robbed Mr. Brimm of his necklace, rings, money, wallet,
cell phones, and tattoo equipment. Taken in the light most favorable to the State, the
proof presented at trial was sufficient for any rational trier of fact to find Steven Carter
guilty beyond a reasonable doubt of facilitation of aggravated robbery.
iii. Inconsistent Verdicts
Defendants’ arguments concerning inconsistencies in the jury’s verdicts are
unpersuasive. Inconsistent verdicts may occur in trials of multiple defendants and in
trials of multiple charges against a single defendant. Appellate courts “will not upset a
seemingly inconsistent verdict by speculating as to the jury’s reasoning if [the court is]
satisfied that the evidence establishes guilt of the offense upon which the conviction was
returned.” Wiggins v. State, 498 S.W.2d 92, 94 (Tenn. 1973). Our supreme court has
held that “[c]onsistency in verdicts for multiple count indictments is unnecessary” and
that appellate courts will not speculate on the jury’s reasoning in reaching its verdict. Id.
at 93-94; see also State v. Davis, 466 S.W.3d 49, 76 (Tenn. 2015).
As stated above, we conclude that any rational trier of fact could have found
Defendants guilty of the crimes beyond a reasonable doubt after reviewing the evidence
in the light most favorable to the State. Therefore, we will not upset a seemingly
inconsistent verdict by speculating as to the jury’s reasoning. Defendants are not entitled
to relief on this basis.
iv. Credibility of Witnesses
Defendants contend that there was a “great divide between the actual truth and Mr.
Brimm’s foggy and untrustworthy recollection, regarding crucial and consequential facts
of the case[.]” Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. Bland, 958 S.W.2d at 659. This court will not reweigh
the evidence. Id. In the light most favorable to the State, the evidence was sufficient for
any rational trier of fact to find the defendant guilty of the crime beyond a reasonable
doubt. Jackson, 443 U.S. at 319; see also Tenn. R. App. P. 13(e). Defendants’
challenges to the sufficiency of the evidence on this basis have no merit.
B. Golden Rule Argument
Defendants contend that the State made an improper “golden rule argument”
during both opening and closing statements. The State asserts that Defendants waived
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this argument by failing to make a timely objection. We agree with the State and
determine Defendants are not entitled to plain error relief.
The State made the following comments during its opening statement:
Coty Brimm is the victim. Coty Brimm is going to sit right over
here in this witness chair and he is going to testify. Coty Brimm is going to
come from that door right there, because he is in jail. He is going to be
wearing his prison outfit and he is shackled and I submit to you, ladies and
gentlemen, that the same laws that apply to you apply to him.
Coty Brimm is a methamphetamine addict and he will tell you that
and I submit to you, ladies and gentlemen, the State of Tennessee is here to
prosecute this case with the same vigor, with the same full force that we
can muster as if it would have been one of you. Thank you.
During its closing argument, the State made the following comments:
As I told you[,] the Judge said that the laws apply across or the
Criminal Justice system applies across the entire United States. I told you
in my opening statement that I will prosecute this case with the same vigor,
with the same full force that I would had any one of you been placed in this
position.
....
Ladies and gentlemen the State beseeches you to come forward to
look at other persons of mankind just as you would yourself. I am not
asking you to be sympathetic. I am just asking you to apply the law.
Thank you.
Because Defendants failed to make a contemporaneous objection, they waived
plenary review of this issue. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.”) Despite waiver, “when necessary to do substantial justice,” this court may
“consider an error that has affected the substantial rights of a party” under plain error
analysis. Tenn. R. App. P. 36(b); see also State v. Hatcher, 310 S.W.3d 788, 808 (Tenn.
2010). Plain error is “limited to errors that had an unfair prejudicial impact which
undermined the fundamental fairness of the trial.” State v. Adkisson, 899 S.W.2d 626,
642 (Tenn. Crim. App. 1994).
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In Adkisson, this court listed five factors to be applied to determine when alleged
trial error constitutes “plain error”: (1) “the record must clearly establish what occurred at
trial”; (2) “a clear and unequivocal rule of law must have been breached”; (3) “a
substantial right of the accused must have been adversely affected”; (4) “the accused did
not waive the issue for tactical reasons”; and (5) “consideration of the error is ‘necessary
to do substantial justice.’” Adkisson, 899 S.W.2d at 641-42 (internal citations omitted);
see also State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (Tennessee Supreme Court
formally adopted Adkisson analysis). In order to be entitled to plain error relief, all five
factors must be established, and “complete consideration of all the factors is not
necessary when it is clear from the record that at least one of the factors cannot be
established.” Smith, 24 S.W.3d at 283. Further, “the plain error must [have been] of such
a great magnitude that it probably changed the outcome of the trial.” Id. (quoting
Adkisson, 899 S.W.2d at 642). The defendants bear the burden of persuading the
appellate court that the trial court committed plain error. State v. Bledsoe, 226 S.W.3d
349, 355 (Tenn. 2007).
In Tennessee, it is well-established that argument of counsel is a valuable privilege
that should not be unduly restricted. State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978).
Therefore, “our courts give wide latitude to counsel in arguing their position in a case to
the jury, and the action of a trial judge in controlling arguments of counsel will not be
reversed absent an abuse of discretion.” Id. (citing Smith v. State, 527 S.W.2d 737 (Tenn.
1975)). The purpose of closing argument is to allow each side “to assist the jury in
analyzing, evaluating, and applying the evidence” and “includes counsel’s right to state
his contention as to the conclusion that the jury should draw from the evidence.” State v.
Cleveland, 959 S.W.2d 548, 551 (Tenn. 1997) (quoting United States v. Garza, 608 F.2d
659 (5th Cir. 1979)). Closing arguments “must be temperate, must be predicated on
evidence introduced during the trial of the case, and must be pertinent to the issues being
tried.” Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976).
This court has defined the “golden rule argument” as asking the jury to “place
themselves in the position of a party to the cause, or posing to them the question whether
they would go through life in the condition of the injured [victim], or would want
members of their family to go through life [physically disabled][.]” State v. Randy
Anthony Sanders, No. M2014-02535-CCA-R3-CD, 2015 WL 5461660, at *6 (Tenn.
Crim. App. Sept. 18, 2015) (second alteration in original) (internal citation omitted),
perm. app. denied (Tenn. Jan. 19, 2016).
The State never asked the jurors to put themselves in the victim’s position. The
State never insinuated that jurors should place themselves in the position of a victim of an
aggravated robbery or aggravated assault. Instead, the State argued that the law protects
all victims equally, even victims who are methamphetamine addicts and who are
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incarcerated. Defendants have failed to show that a substantial right was “adversely
affected” or that consideration of any error is “necessary to do substantial justice.”
Adkisson, 899 S.W.2d at 641-42. Defendants are not entitled to plain error relief on this
basis.
C. Tennessee Rules of Evidence 608 and 609
Defendants contend that the trial court erred in applying Tennessee Rules of
Evidence 608 and 609 “to exclude testimony and/or evidence pertaining to [all] reasons
why the victim, [Mr.] Brimm, was in jail at the time of trial, specifically in excluding
testimony pertaining to Mr. Brimm’s pending criminal charge.” The State responds that
“[t]his claim is meritless because . . . Defendants failed to make an appropriate offer of
proof, what record there is suggests that the State did not ‘open the door,’ and any error
was harmless.” We agree with the State that Defendants are not entitled to relief on this
issue.
Generally, “questions concerning the admissibility of evidence rest within the
sound discretion of the trial court, and this [c]ourt will not interfere in the absence of
abuse appearing on the face of the record.” State v. Plyant, 263 S.W.3d 854, 870 (Tenn.
2008). A trial court abuses its discretion when it “applies an incorrect legal standard or
reaches a conclusion that is ‘illogical or unreasonable and causes an injustice to the party
complaining.’” Id. (quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)).
i. Tennessee Rule of Evidence 609
The State called Mr. Brimm in their case in chief. After asking Mr. Brimm his
name, the State asked, “Mr. Brimm, now, obviously, you are in the Sumner County jail;
is that right?” When Mr. Brimm answered in the affirmative, the State inquired as to the
reasons he was in jail. Mr. Brimm stated that he “violated [his] probation” and “was sent
to rehab and [he] left [rehab] early without permission.” As a result, he said he was
charged with and pled guilty to escape. Mr. Brimm also admitted that he had been
previously convicted of misdemeanor theft and that he was addicted to methamphetamine
and prescription drugs.
When the State turned its questioning to Defendants’ case, counsel for Defendants
requested a hearing outside the presence of the jury. Once the jury was excused, Steven
Carter’s counsel asserted that Mr. Brimm was also incarcerated in Sumner County
because he was being held “with a no-bond warrant for fugitive from justice from
Simpson County, Kentucky for Wanton Endangerment First Degree, Fleeing or Evading
Police[,] First Degree[] Attempted Murders of a police officer; and, Speeding.” Counsel
argued that “if the State is going to paint a picture of why [Mr. Brimm] is being held [in
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jail,] . . . it should be a complete picture.” Although Defendants did not reference any
rule of evidence to support its request, the trial court ruled that “[t]hese particular matters
are charges right now and they’re not admissible under 609.” Defendants made no
additional argument and did not request to make an offer of proof.
Rule 609 permits a party to attack the credibility of a witness by presenting
evidence of prior convictions if four conditions are satisfied. State v. Waller, 118 S.W.3d
368 (Tenn. 2003). Defendants sought to question the witness about pending charges, not
convictions. The trial court properly ruled that Rule 609 did not permit such cross-
examination.
ii. Tennessee Rule of Evidence 608
At the motion for new trial hearing, after the trial court stated Rule 609 only
allowed a witness’s testimony to be attacked by prior convictions, Steven Carter’s
counsel argued, “I think it’s not under 609. I think it’s under 608(b) where when the
door is open and there’s the – you’re able to comment and discuss things that wouldn’t
normally be admissible.” This was first mention of Rule 608(b) by Defendants. Now, on
appeal, Defendants challenge the trial court’s ruling on the admission of Mr. Brimm’s
alleged prior bad acts based on the “opening the door” doctrine and Tennessee Rule of
Evidence 608.
We determine that Defendants have waived the claim that the trial court erred in
applying Tennessee Rule of Evidence 608 to exclude certain evidence for three reasons.
First, Defendants’ brief makes only a cursory mention of Rule 608 in a subheading and in
one conclusory sentence. When a defendant fails “to articulate reasons to support his
conclusory statement,” the issue is waived. State v. Gray, 960 S.W.2d 598, 605 (Tenn.
Crim. App. 1997). Second, Defendants failed to cite any authority to support their claim
that the “door” was opened under Rule 608 by the State’s direct examination of the
victim. Tennessee Rule of Appellate Procedure 27(a)(7)(A) and Tennessee Court of
Criminal Appeals Rule 10(b) require a party to cite in their brief to the authority that they
rely on for their arguments. Because Defendants failed to cite any authority in support of
their Rule 608 claim, the issue is waived. See State v. Dickerson, 885 S.W.2d 90, 93
(Tenn. Crim. App. 1993). Third, in their motions for new trial, Defendants asserted that
the trial court erred in applying Tennessee Rule of Evidence 609 without mentioning
Rule 608. Defendants “cannot assert a new or different theory” to support a claim that
the trial court erred in excluding evidence “in a motion for new trial or in the appellate
court.” See Adkisson, 899 S.W.2d at 634-35.
Defendants have waived appellate review of the claim that the trial court erred in
excluding evidence under Rule 608.
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D. Sentencing
Michael Carter additionally asserts that the trial court erred in its determination
that he was a Range II, multiple offender. Further, he contends that the trial court erred
as a matter of law in determining the applicability of enhancement and mitigating factors,
resulting in an excessive sentence. The State responds that the trial court properly
sentenced Michael Carter. We agree with the State.
When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). The party
challenging the sentence on appeal bears the burden of establishing that the sentence was
improper. Tenn. Code Ann. § 40-35-401 (2017), Sentencing Comm’n Cmts. “[A] trial
court’s misapplication of an enhancement or mitigating factor does not remove the
presumption of reasonableness from its sentencing determination.” Bise, 380 S.W.3d at
709. Moreover, under those circumstances, this court may not disturb the sentence even
if it had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn.
2008).
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; (7) any statement the defendant made in the defendant’s own behalf about
sentencing; and (8) the results of any validated risk and needs assessment contained in the
presentence report. See Tenn. Code Ann. § 40-35-210(b) (2017); State v. Taylor, 63
S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court must also consider the
potential or lack of potential for rehabilitation or treatment of the defendant in
determining the sentence alternative or length of a term to be imposed. Tenn. Code Ann.
§ 40-35-103(5) (2017).
To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
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Ann. § 40-35-210(e) (2017); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705–06. Even “a maximum
sentence within the appropriate range, in the total absence of any applicable enhancement
factors, and even with the existence of applicable mitigating factors, should be upheld as
long as there are reasons consistent with the statutory purposes and principles of
sentencing.” State v. Christopher Scott Chapman, No. M2011-01670-CCA-R3-CD, 2013
WL 1035726, at *9 (Tenn. Crim. App. Mar. 13, 2013) (citing Bise, 380 S.W.3d at 706;
Carter, 254 S.W.3d at 345-46), no perm. app. filed.
In this case, Michael Carter was convicted of aggravated assault, a Class C felony,
and aggravated robbery, a Class B felony. See Tenn. Code Ann. §§ 39-13-
102(e)(1)(A)(ii), -402(b) (2016). The trial court determined that Michael Carter was a
multiple offender based upon his prior criminal record. As relevant here, “[a] multiple
offender is a defendant who has received[] . . . [a] minimum of two (2) but not more than
four (4) prior felony convictions within the conviction class, a higher class, or within the
next two (2) lower felony classes, where applicable[.]” Tenn. Code Ann. § 40-35-
106(a)(1) (2017). “A defendant who is found by the court beyond a reasonable doubt to
be a multiple offender shall receive a sentence within Range II.” Tenn. Code Ann. § 40-
35-106(c) (2017). A Range II sentence for a Class B felony is “not less than twelve (12)
nor more than twenty (20) years[.]” Tenn. Code Ann. § 40-35-112(b)(2) (2017).
Michael Carter asserts that the trial court erred in determining that he was a Range
II, multiple offender, at the time of sentencing. Although Michael Carter only included a
conclusory statement regarding this issue in his brief, we opt to consider the issue on the
merits. The State introduced certified copies of the judgments showing that Michael
Carter had three prior convictions for aggravated assault occurring on May 14, 2003;
May 15, 2003; and May 1, 2005. These three prior convictions for aggravated assault
were all Class C felonies. Michael Carter’s aggravated robbery conviction is a Class B
felony; therefore, his prior convictions for aggravated assault amount to three felony
convictions within the next two lower felony classes of the aggravated robbery
conviction. Thus, we conclude that the trial court did not err in classifying Michael
Carter as a Range II, multiple offender.
In setting the length of the sentence within the range, the trial court found that two
enhancement factors applied and that no mitigating factors applied. Regarding the
enhancement factors, the trial court found that Michael Carter had a previous history of
criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range, and that Michael Carter was a leader in the commission of an offense
involving two or more criminal actors. See Tenn. Code Ann. § 40-35-114(1), (2) (2017).
On appeal, Michael Carter does not dispute the trial court’s reliance on these factors. The
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record shows that Michael Carter was previously convicted of sixteen misdemeanors,
four felonies; eleven of these prior convictions were crimes of violence, including
domestic assault, assault, and aggravated assault. The trial court determined that a top-
of-range sentence was justly deserved in relation to the seriousness of the offense and that
the sentence would promote respect for the law. The trial court did not abuse its
discretion either in finding the criminal history or the leader in the commission of an
offense enhancement factor applied.
Michael Carter argues that the trial court erred in imposing his sentence because
the sentence was not a fair result of the court’s assessment of applicable mitigating
factors. More specifically, he argues that the trial court failed to acknowledge his
educational “achievements and aspirations[,]” which were reflected in his presentence
report; that the victim lied to officers about the cause of the injury to his hand, which
severely undermines the victim’s credibility; that the victim stole Michael Carter’s cell
phone; that the trial court failed to consider his history of drug abuse and familial
mistreatment; and that the trial court should have considered the credibility of the
witnesses under the “catch-all” provision of Tennessee Code Annotated section 40-35-
113(13), which provides for application of “[a]ny other factor consistent with the
purposes of this chapter.” Tenn. Code Ann. § 40-35-113(13) (2017). The State responds
that Michael Carter has failed to show that the trial court erred in failing to find any
mitigating factors and that the misapplication of mitigating factors would not be grounds
for appellate relief because the trial court did not “wholly depart” from the principles and
purposes of sentencing. We agree with the State.
Tennessee Code Annotated section 40-35-113 states, in pertinent part, that, “[i]f
appropriate for the offense, mitigating factors may include, but are not limited to:” “[t]he
defendant’s criminal conduct neither caused nor threatened serious bodily injury”; “[t]he
defendant acted under strong provocation”; “[t]he defendant played a minor role in the
commission of the offense; “[t]he defendant was suffering from a mental or physical
condition that significantly reduced the defendant’s culpability for the offense; however,
the voluntary use of intoxicants does not fall within the purview of this factor”; and “[t]he
defendant acted under duress or under the domination of another person, even though the
duress or the domination of another person is not sufficient to constitute a defense to the
crime[.]” Tenn. Code Ann. § 40-35-113(1), (2), (4), (8), (12) (2017).
Mitigating factors are advisory only, and the weight given to those factors is
entirely within the trial court’s discretion. Tenn. Code Ann. § 40-35-210(c)(2) (2017);
Bise, 380 S.W.3d at 701; Carter, 254 S.W.3d at 345. While the trial court did not detail
on the record specific reasons for rejecting these mitigating factors, “[m]ere inadequacy
in the articulation of the reasons for imposing a particular sentence . . . should not negate
the presumption [of reasonableness].” Bise, 380 S.W.3d at 705–06. The trial court did
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not abuse its discretion when it rejected these mitigating factors and sentenced Michael
Carter to a within-range sentence of twenty years to serve for aggravated robbery. We
conclude that Michael Carter is not entitled to relief on this ground.
E. Merger
At the sentencing hearing, the trial court merged Michael Carter’s aggravated
assault conviction into his aggravated robbery conviction and Steven Carter’s aggravated
assault conviction into his facilitation of aggravated robbery conviction. The trial court
entered a judgment of conviction showing that Michael Carter was convicted of
aggravated robbery in Count 2 and sentenced to twenty-years as a multiple offender and a
judgment of conviction showing that Steven Carter was convicted of facilitation of
aggravated robbery in Count 2 and sentenced to nine years as a multiple offender. In the
“Special Conditions” box of the judgment for Michael Carter, the trial court noted that
the aggravated assault conviction in count 1 merged with the aggravated robbery
conviction in count 2. In the “Special Conditions” box of the judgment for Steven Carter,
the trial court noted that the aggravated assault conviction in count 1 merged with the
facilitation aggravated robbery conviction in count 2. No judgment of conviction for
aggravated assault was entered for either Defendant. A judgment of conviction should
have been completed for the aggravated assault convictions. See State v. Berry, 503
S.W.3d 360, 364 (Tenn. 2015). (“When a jury returns a guilty verdict, the trial court
executes a document referred to as a ‘judgment of conviction’ that must be entered by the
clerk.”). The judgment of conviction should show the sentence imposed by the trial court
as required by Tennessee Rule of Criminal Procedure 32(e)(2). Id., see State v. Sangria
Venturia Baker, Jr., No. W2018-00732-CCA-R3-CD, 2019 WL 2404977, at *8 (Tenn.
Crim. App. June 7, 2019) (remanding for entry of an amended judgment reflecting the
imposition of a sentence in a merged count).
III. Conclusion
For the aforementioned reasons, we affirm Michael Carter’s convictions for
aggravated robbery and aggravated assault and Steven Carter’s convictions for
facilitation of aggravated robbery and aggravated assault. We remand for sentencing on
the aggravated assault convictions and for entry of uniform judgment documents in
conformity with Berry, 503 S.W.3d at 364.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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