State of Tennessee v. Michael Todd Kirkup ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 18, 2008
STATE OF TENNESSEE v. MICHAEL TODD KIRKUP
Direct Appeal from the Criminal Court for Davidson County
No. 2006-D-3083 Cheryl Blackburn, Judge
No. M2007-02066-CCA-R3-CD - Filed July 16, 2008
A Davidson County jury convicted the Defendant, Michael Todd Kirkup, of one count of theft of
property over $1000, one count of possession of drug paraphernalia, and one count of second
offense driving on a revoked license. The trial court sentenced the Defendant to an effective
sentence of six years in prison. On appeal, the Defendant contends that: (1) the trial court erred
when it allowed the State to impeach his credibility with his prior convictions for theft and
fraudulent use of a credit card; (2) there is insufficient evidence to support his convictions; and
(3) the trial court erred when it enhanced his sentence. Finding no error, we affirm the
judgments of the trial court.
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 JERRY L. SMITH and
NORMA MCGEE OGLE, JJ., joined.
Emma Rae Tennent (on appeal) and J. Michael Engle (at trial), Nashville, Tennessee, for the
Appellant, Michael Todd Kirkup.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Deshea Dulany, Assistant Attorney General; Victor S. Johnson, III, District Attorney General;
Bret Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Facts
A. Trial
This case arises from the Defendant’s arrest for driving a van that had been reported
stolen on September 12, 2006. At the Defendant’s trial, the following evidence was presented:
Stephan Szilagyi, an employee of Rent-A-Center in Springfield, Tennessee, testified that one of
Rent-A-Center’s business vans was stolen on September 12, 2006, during business hours. Prior
to being stolen, the van was parked by the loading docks in the back of the store with the keys
still in it. The driver of the van left the keys because she went into the store for ten minutes and
planned to immediately return to the van. At around 2:00 or 2:30 p.m. store employees reported
the van missing.
Szilagyi reported the van stolen to the Springfield Police Department, and the police
department informed him when officers found the van. Szilagyi stated that, when the van was
recovered, a toolbox and a Comcast radio were missing from inside the van. Szilagyi testified he
did not know or recognize the Defendant, and he did not give the Defendant permission to take
the van.
Allen Canler, the store manager for Rent-A-Center, testified he was familiar with the
company van stolen on September 12, 2006. The van was a plain white 2001 Chevy Econovan.
He estimated the value of the van at $6000. Canler said that he did not know the Defendant, and
he did not give the Defendant permission to drive the van.
Officer Brian Myatt of the Metropolitan Nashville Police Department testified that, at
about 1:00 a.m. on September 13, 2006, he was patrolling an area of Nashville that had
numerous cars broken into on previous nights. He saw a white van in the area where the break-
ins occurred, and he attempted to follow the van and run the license plate number through his
computer. As he began following the van, another officer, Officer Jason Moyer, initiated a
traffic stop of the van based upon the van’s inoperable brake light. Officer Myatt pulled in
behind Officer Moyer and determined the van had been reported stolen in Springfield. The
officers arrested the Defendant and searched the van. Officer Myatt located a silver metal “crack
pipe” in the center console of the van.
On cross-examination, Officer Myatt testified Officer Moyer arrested the Defendant
immediately after Officer Myatt learned the van had been reported stolen. The officer agreed the
Defendant had the keys to the van. On redirect examination, Officer Myatt testified that the
Defendant was alone in the van.
The State offered a certified conviction proving that the Defendant’s driver’s license was
revoked at the time of his arrest on September 13, 2006.
The trial court heard arguments from counsel about the admissibility of the Defendant’s
prior convictions should the Defendant choose to testify. It ruled that the two prior theft
convictions, while similar to this case, were admissible “because of . . . the absolute importance
of the assessment of credibility, should [the Defendant] testify.” The trial court also ruled that
the State would be allowed to cross-examine the Defendant about his prior fraudulent use of a
credit card conviction because it was a crime involving dishonesty.
The Defendant testified that, on September 13, 2006, he was with some other people at a
motel, the Congress Inn, drinking and partying. He “was elected” to make a run to the store for
everyone. The Defendant drove a white van, which he thought belonged to David Wooten,
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because his car was not at the motel. The Defendant described Wooten as a “[c]asual
acquaintance.” The Defendant testified the keys were in the van, and Wooten gave him
permission to drive the van. The Defendant said that, when he was stopped by police, he told
both officers how he came into possession of the van and offered to take them to Wooten. The
Defendant denied owning the metal pipe, which the officers described as a crack pipe, found in
the van. He said the pipe also belonged to Wooten, who had placed it in the center console.
The Defendant agreed he had previously been convicted twice of theft of property and
once of fraudulent use of a credit card.1 He explained that two of these convictions occurred
more than ten years ago. Further, the Defendant testified that he was employed as a flooring
subcontractor and was also a member of the 278th regimental combat team for the Army
National Guard at the time of his arrest .
On cross-examination, the Defendant agreed he was convicted of theft of over $1000 and
fraudulent use of a credit card in 1996. He was also convicted of theft of over $1000 in 2000.
The Defendant said he grew up in Springfield, Tennessee, and he knew the location of the Rent-
A-Center from which the van was stolen. He said that, at the time of this theft, he lived in White
House, Tennessee, with his father, but he had not been there for a couple of days before this
incident. The Defendant agreed he did not have his car with him at the Congress Inn and said
Wooten had picked him up from his father’s house in White House. The first time the
Defendant saw the van was at around 10:30 p.m. on the night before he was arrested. He said he
rode in the van with Wooten prior to driving the van.
The Defendant admitted using crack cocaine at the motel and said he was a crack cocaine
user at the time of this incident. He agreed he had seen Wooten use the crack pipe the officers
found in the van. The Defendant indicated that he had no money with him at the time of his
arrest. He said he told the officers he rented the van from Wooten for fifty dollars, which he
maintained was true. The Defendant’s plan was to go and buy alcohol, bring it back to the motel
room, and then to leave again in the van. The Defendant said he intended to use the van to go to
his house, change clothes, and see a woman in White House, Tennessee.
The Defendant said a cage separated the front of the van from the back of the van, and he
did not look to see what was in the back of the van. The Defendant denied seeing the toolbox or
the radio equipment in the van.
Based upon this evidence, the jury convicted the Defendant of theft of property over
$1000, possession of drug paraphernalia, and second offense driving on a revoked license.
B. Sentencing Hearing
1
The trial court properly instructed the jury that it could only consider the Defendant’s previous convictions
as they related to his credibility.
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At the sentencing hearing, the trial court admitted the presentence report, which showed
the Defendant had three prior felony convictions. It also showed the Defendant had previously
been convicted of driving on a revoked license and use of drug paraphernalia. The parties
agreed the Defendant was a Range II offender, and the range of punishment for his class D
felony theft conviction was four to eight years. Further, the parties agreed the maximum
sentence for the two misdemeanor convictions was eleven months and twenty-nine days. The
State also introduced additional judgment forms that reflected the Defendant had been convicted
of violating his probation.
The Defendant testified he suffered from post-traumatic stress disorder (“PTSD”) from
being in combat in Iraq, and he also suffered from depression and bipolar disorder. He said the
“Mental Health Co-Op” evaluated him and provided these diagnoses. The Defendant has not
been medicated for these illnesses.
The Defendant detailed his military service, including that he joined the military in 1991.
He left the military for a period of time and worked as a carpet installer until he returned to the
military as a mechanized infantry soldier, or a “ground fighter.” The Defendant said that he was
deployed to Iraq once with the 278th Regimental Combat Team attached to the Third Infantry
Division. The Defendant said his PTSD is a result of the things that he witnessed and in which
he participated while in Iraq. The Defendant explained that, despite his prior record, he was
allowed to go to Iraq because he had waivers signed allowing him to volunteer on the
deployment. The Defendant said he was “in a very hot zone” and “attacked pretty much every
time [h]e went out.”
The Defendant agreed he had an alcohol and a crack cocaine problem and explained that
the mental health professionals told him that he was “self-medicati[ng].” The drugs and alcohol
helped the Defendant try to forget what he had witnessed. The Defendant said he did well while
incarcerated, taking a computer vocational class. He offered a letter of support from the
instructor of his class. The Defendant said he also graduated from New Avenues.2 The
Defendant expressed hopes to seek treatment for his substance abuse problems and to renew his
treatment for his mental health issues when released. He said he is eligible to go to the VA for
inpatient treatment, if the court were to so allow.
On cross-examination, the Defendant agreed that some of his felony convictions occurred
for crimes he committed before going to Iraq. The Defendant said his PTSD began in 2004, and
his convictions previous to that date were related to drugs and alcohol. The Defendant agreed he
previously violated his probation and said his violations were for not reporting. He agreed he
was on probation starting May 3, 2006, for misdemeanor theft, and he violated the probation by
not reporting. He explained he did not report because he was using drugs and not thinking
clearly. Further, he agreed he had not successfully completed his probation at the time that he
committed the offenses in this case.
2
There is no further description in the record of the New Avenues program.
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The Defendant agreed that he was arrested in this case in September 2006. While
released on bond, he was arrested for possessing unlawful drug paraphernalia and driving on a
revoked license.
The Defendant’s father, Robert Michael Kirkup, testified that the Defendant had served
in the Sunni Triangle in Iraq and that he has mental-health and substance abuse problems.
Kirkup said he found some intensive treatment programs that would benefit the Defendant.
Kirkup said the Defendant had good skills and showed a lot of promise if he stopped using
drugs.
The parties examined the Defendant’s record and determined he had also previously
violated a community corrections sentence. After hearing testimony and reviewing the
documentation, the trial court found:
This is a class D felony, most particularly the theft of property over $1,000. The
other two are misdemeanors, though not necessarily required, the felony
principles apply to those also. So I’m going to find first the enhanc[ement] and
mitigating factors, set the sentence, and then we’ll go[] [to]
consecutive/concurrent, and then whether or not there’s an alternative sentence.
Okay. Enhanc[ement] factors, clearly factor number one. He has a
previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range, misdemeanors and things that have
occurred before and after this crime. So that definitely applies.
The next one that I find would be . . . factor number eight. And that is he
has failed to comply with conditions of a sentence involving release into the
community. That is clearly applicable to this case based on the documents that
we’ve seen.
And thirteen, that he was on probation at the time of this offense. It was
from Sumner County. He had been on probation at that time for eleven months
and twenty-nine days.
All of those I find do apply. None others do really.
Looking at th[e] mitigating factors, I actually am going to find two. One
would be number one. And that is the conduct neither caused nor threatened
serious bodily injury. That clearly would be made out by the proof.
And then thirteen, any other factor consistent with the purposes of the
chapter. And clearly his work in Iraq would be one of those where he
volunteered. And that would be something to consider.
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So given all of that I’m going to sentence him . . . on the theft property to
six years as a Range 2 offender and eleven months and twenty-nine days as to
both of the other offenses.
Now, the issue about whether concurrent or consecutive, the State is not
even asking for consecutive sentences. Two grounds would apply if looking at
them. And that is his criminal activity is extensive, his history is extensive, and
the other one that might apply is that he was on probation at the time. However I
agree with the State in that looking at the Wilkerson factors, clearly under the
circumstances of this the aggregate term of consecutive would not reasonably
relate to the severity of the offenses. So I’m not going to give him any
consecutive sentencing. So it’s six years, Range 2.
So that leads us to whether or not probation is appropriate or an alternative
sentence. As General Gunn has pointed out on the records he has . . . previously
been allowed to have least restrictive measures. They have frequently and
recently been unsuccessful, both before and after his going to Iraq. He has a
lengthy history of criminal conduct. This is probably not one of the more serious
offenses that I see, but clearly he has had every opportunity to straighten himself
out. I understand that he’s got a drug problem. I understand that it’s bad. He
also has some mental-health problems. But at this time I’m just not going to
place him on an alternative sentence. If after, you know, some in-custody
programs at CCA and/or a better idea of where you might go, I might consider it
in the future. But not right now. I mean, he’s going to just – [Defendant] – . . .
we’ve just tried and we’ve tried. And I understand how difficult it is to get off
drugs. But, you know, at some point I’ve got to say you’ve got to serve your
time. You get your jail credit.
The Defendant appeals both his judgments of conviction and his sentence.
II. Analysis
On appeal, the Defendant contends that: (1) the trial court erred when it allowed the State
to impeach his credibility with his prior convictions for theft and fraudulent use of a credit card;
(2) there is insufficient evidence to support his convictions; and (3) the trial court erred when it
enhanced his sentence.
A. Prior Convictions
The Defendant first contends the trial court erred when it allowed the State to impeach
him with his prior convictions. The Defendant asserts the trial court abused its discretion when
it found that the probative value of the Defendant’s prior convictions outweighed any prejudicial
effect, in part because the crimes were so similar to the one for which he was on trial. The State
counters that the fact a prior conviction involves the same or similar crime for which a defendant
is being tried does not automatically require its expulsion.
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Tennessee Rule of Evidence 609(a) provides that a witness may be impeached by
evidence of a prior conviction. However, the prior conviction must be a felony conviction or a
conviction of an offense involving dishonesty or a false statement. Tenn. R. Evid. 609(a)(2).
Upon request, the trial court must determine that the conviction’s probative value on credibility
outweighs its unfair prejudicial effect on the substantive issues. Id. The rule also mandates that
the State give reasonable written notice before trial of the particular convictions it intends to use
to impeach the accused. Tenn. R. Evid. 609(a)(3). The Tennessee Supreme Court has noted that
the following two criteria are especially relevant in balancing a prior conviction’s probative
value and unfair prejudicial effect: (1) the impeaching conviction’s relevance as to credibility;
and (2) the impeaching conviction’s similarity to the charged offense. State v. Waller, 118
S.W.3d 368, 371 (Tenn. 2003). A trial court should first analyze the relevance the impeaching
conviction has to the issue of credibility. Id. The trial court should then assess the similarity
between the crime on trial and the crime underlying the conviction. Id. at 373.
When an impeaching conviction is substantially similar to the charged offense, a danger
exists that jurors will improperly consider the impeaching conviction as evidence of the
propensity of the defendant to commit the crime. Id. Accordingly, the unfair prejudicial effect
of an impeaching conviction on the substantive issues greatly increases if the conviction is
substantially similar to the charged offense. Id. Under these circumstances, a trial court should
carefully balance the impeaching conviction’s relevance with regard to credibility against its
unfair prejudicial effect on substantive issues. Id.
Evidence of a prior conviction that is substantially similar to the charged offense is not
per se inadmissible for impeachment purposes. Id. “The standard is not whether there is any
prejudice by allowing the State to use the prior conviction for impeachment, but whether the
possible prejudice is outweighed by the probative value of the evidence as to the defendant’s
credibility as a witness.” State v. Roberts, 943 S.W.2d 403, 408 (Tenn. Crim. App. 1996),
overruled on other grounds by State v. Ralph, 6 S.W.3d 251 (Tenn. 1999). The courts of this
State have repeatedly held that robbery and theft are crimes of dishonesty, “thus lending greater
weight to their probative value regarding credibility.” State v. Lamario Sumner, No. W2005-
00122-CCA-R3-CD, 2006 WL 44377, at *5 (Tenn. Crim. App., at Jackson, Jan. 6, 2006)
(quoting State v. Blevins, 968 S.W.2d 888, 893 (Tenn. Crim. App. 1997)), perm. app. denied
(Tenn. May 30, 2006). On appellate review, the trial court’s rulings on the admissibility of prior
convictions for impeachment purposes are subject to reversal only for an abuse of discretion.
State v. Thompson, 36 S.W.3d 102, 110 (Tenn. Crim. App. 2000). A trial court abuses its
discretion only when it applies an incorrect legal standard or reaches a decision that stands
against logic or reasoning that causes an injustice to the complaining party. Waller, 118 S.W.3d
at 371.
In the case under submission, the State properly filed written notice before the trial of its
intent to question the Defendant about his prior convictions. Before the Defendant testified, the
trial court conducted a hearing outside the presence of the jury to determine whether the
Defendant’s convictions were admissible to impeach his credibility. The Defendant contended
at the hearing that the prior convictions were not admissible because they were too similar to the
crime for which he was charged, and the prejudicial effect of the admission of the convictions far
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outweighed any probative value about his credibility. The State countered that the Defendant’s
defense was a “claim of right” defense, meaning the Defendant contended he thought he had a
right to be in possession of the van. Therefore, the Defendant’s credibility was crucially
important to the jury’s determination of his guilt. The Court found:
There’s obviously prior convictions. And then I have to determine whether or not
the probative value outweighs its unfair prejudicial effect on the substantive
issues. So there’s this balancing test. And there also is a lot of case law that
indicates that one has to be very careful when the crimes are similar. Well, they
are [in this case]. However, this is – you know, I think we’d be in a different
situation if this were an aggravated assault case and he had been convicted of
aggravated assault, because aggravated assault is definitely a crime, but it’s not a
crime of dishonesty, but, yet, it could be used. There can’t be any more a crime
that is more reflective of a person’s dishonesty than the crime of theft. So it has
such a probative value, even though this is a theft case. At this point – and then
given that I’m sure [the Defendant] obviously given his claim of right, is going to
deny this, the credibility is absolutely crucial. So I’m going to allow the State to
impeach on that theft, even though they’re similar, it’s just such a crime of
dishonesty, it just kind of goes to the whole credibility. It’s far more pr[o]bative
than prejudicial.
Later the trial court said:
Well, we had two counts of theft and I ruled that they were admissible, even
though they’re similar to this, because of just the absolute importance of the
assessment of credibility, should [the Defendant] testify. We’ll allow that.
Fraudulent use of a credit card, though, involves a theft – it’s sort of a crime of
dishonesty. It’s not, at least, a theft offense.
We conclude that the trial court did not abuse its discretion when it concluded the
probative value of the Defendant’s prior convictions outweighed their prejudicial effect. The
trial court determined the Defendant’s credibility was a key issue, especially in light of his claim
of right defense. The Defendant denied he took the van from Rent-A-Center but explained he
rented the van from his friend for a couple of hours. As previously stated, theft, like fraudulent
use of a credit card, is a crime of dishonesty and therefore highly probative to the Defendant’s
credibility. Because the trial court did not use an incorrect legal standard or reach a decision that
stands against logic, we conclude the trial court did not abuse its discretion when it determined
the Defendant’s prior criminal convictions were highly probative to his credibility, and the
probative value of the testimony was not outweighed by the prejudice. The Defendant is not
entitled to relief on this issue.
B. Sufficiency of the Evidence
The Defendant next contends the evidence presented is insufficient to sustain his
conviction for theft of property. He asserts the evidence proved he had an honest belief that he
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had the right to exercise control over the property as he did. See T.C.A. § 39-14-107 (2006).
The State counters that, viewing the evidence in the light most favorable to it, a rational trier of
fact could have found the essential elements of theft over $1000.
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, 91 S.W.3d 247, 276 (Tenn.
2002)). This rule 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). A conviction may be based entirely on circumstantial
evidence where the facts are “so clearly interwoven and connected that the finger of guilt is
pointed unerringly at the Defendant and the Defendant alone.” State v. Smith, 868 S.W.2d 561,
569 (Tenn. 1993). In such cases, however, the facts must be “so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant
alone.” 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 Marabler v. State, 313 S.w.2d 451,
457 (1958)).
In determining the sufficiency of the evidence, this Court should not re-weigh or re-
evaluate 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); Liakas v. State, 286 S.W.2d 856, 859 (Tenn.
1956). “Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact.”
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859. “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. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (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(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 inferences which may be drawn
from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274, 279
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(Tenn. 2000)). Because a verdict of guilt against a defendant removes the presumption of
innocence and raises a presumption 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). Importantly, the credibility of the witnesses,
the weight to be given their testimony, and the reconciliation of conflicts in the evidence are
matters entrusted exclusively to the jury as the trier of fact. Bland, 958 S.W.2d at 659.
Pursuant to Tennessee Code Annotated section 39-14-103 (2006), “A person commits
theft of property if, with intent to deprive the owner of property, the person knowingly obtains or
exercises control over the property without the owner’s effective consent.” Theft of property is a
Class D felony if the value of the property obtained is between $1000 and $10,000. T.C.A. § 39-
14-105(3) (2006). The evidence at trial, viewed in the light most favorable to the State, proved a
van, with the keys inside it, was parked at the loading docks at the Springfield location of Rent-
A-Center on September 12, 2006. The van’s estimated value was $6000. At 1:00 a.m. the
following morning, police officers arrested the Defendant while he drove the van. The
Defendant, who grew up in Springfield, said he was familiar with the Rent-A-Center location but
claimed he did not steal the van but rather “rented” it from his friend. The jury rejected the
Defendant’s contention. We conclude there is sufficient evidence, both direct and
circumstantial, to support the jury’s finding.
C. Sentencing
The Defendant finally contends the trial court erred when it sentenced him. He does not
contest the trial court’s application of the three enhancement factors, but, rather, he asserts it
erred when it failed to mitigate his sentence based upon his mental health status. See T.C.A. §
40-35-113(13) (2006). The Defendant points to proof at his sentencing hearing that he suffered
from PTSD, depression, and bipolar disorder and that he used drugs to self-medicate these
conditions.
When a defendant challenges the length, range or manner of service of a sentence, this
Court must conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” T.C.A. § 40-35-401(d) (2006).
As the Sentencing Commission Comments to this section note, the burden is on the appealing
party to show that the sentence is improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts.
This means that if the trial court followed the statutory sentencing procedure, made findings of
facts which are adequately supported in the record and gave due consideration and proper weight
to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act, we
may not disturb the sentence even if a different result is preferred. T.C.A. § 40-35-103 (2006);
State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The presumption does not apply to the legal
conclusions reached by the trial court in sentencing a defendant or to the determinations made by
the trial court that are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377
(Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994).
In conducting a de novo review of a sentence, we must consider: (1) any evidence
received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of
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sentencing; (4) the arguments of counsel relative to sentencing alternatives; (5) the nature and
characteristics of the offense; (6) any mitigating or enhancement factors; (7) any statements
made by the defendant on his or her own behalf; and (8) the defendant’s potential or lack of
potential for rehabilitation or treatment. See T.C.A. § 40-35-210 (2006); State v. Taylor, 63
S.W.3d 400, 411 (Tenn. Crim. App. 2001).
In the case under submission, the Defendant committed the offense in September 2006,
so the 2005 revisions to Tennessee’s sentencing act were applicable to his sentence. The revised
sentencing act provides:
(c) The court shall impose a sentence within the range of punishment, determined
by whether the defendant is a mitigated, standard, persistent, career, or repeat
violent offender. In imposing a specific sentence within the range of punishment,
the court shall consider, but is not bound by, the following advisory sentencing
guidelines:
(1) The minimum sentencing within the range of punishment is the
sentence that should be imposed, because the general assembly set
the minimum length of sentence for each felony class to reflect the
relative seriousness of each criminal offense in the felony
classifications; and
(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114.
T.C.A. § 40-35-210 (2006). Specific to the review of the trial court’s finding enhancement and
mitigating factors, the 2005 Sentencing Amendment effectually “deleted” appellate review of
how the trial court weighed the factors because it rendered the factors “advisory.” State v.
Stacey Joe Carter, No. M2005-02784-SC-R11-CD, – S.W.3d –, 2008 WL 2081247, at *9-10
(Tenn. May 19, 2008). Therefore, an error in the trial court’s application of the enhancement or
mitigating factors “will not necessarily require modification of the sentence if the sentence
record reflects that in determining the specific sentence length, the trial court considered the
provisions of Tennessee Code Annotated section[] 40-35-210(b).” Id.
In this case, the trial court sentenced the Defendant to the midpoint of his sentencing
range, applying three enhancement factors and two mitigating factors. The Defendant does not
contest the three enhancement factors applied by the trial court: (1) that he has a previous history
of criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range; (2) that he has failed to comply with conditions of a sentence involving
release into the community; and (3) that he was on probation at the time that he committed this
offense. See T.C.A. § 40-35-113 (1), (8) & (13). Similarly, the Defendant agrees with the trial
court’s application of two mitigating factors: (1) that his conduct neither caused nor threatened
serious bodily injury; and (2) that, under the “catch-all” provision to consider any other factor
consistent with the purposes of the chapter, the Defendant’s volunteering to deploy to Iraq. See
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T.C.A. § 40-35-114 (1) & (13). The Defendant contends that the trial court should have also
considered his recent diagnosis for PTSD, depression, and bipolar disorder under the catch-all
provision.
At the sentencing hearing, the Defendant’s attorney argued the trial court should consider
his mental condition under mitigating factor (8), which allows the trial court to mitigate a
defendant’s sentence because he has a mental condition that could have reduced his capability or
his capacity to commit the offense although falling short of constituting a defense. See T.C.A. §
40-35-114(8). In order to establish this mitigating factor, the defendant must not only establish
the presence of a mental condition significantly reducing culpability but also a causal nexus
between his condition and the offense charged. See State v. Robert James Yoreck, III, No.
M2004-01289-CCA-RM-CD, 2003 WL 23613823, at *4 (Tenn. Crim. App., at Nashville, June
29, 2004). The only evidence that the Defendant suffered any mental condition was offered
through his own testimony that he had recently been diagnosed with PTSD, depression, and
bipolar disorder. He offered no documentation supporting these diagnoses. He also did not
provide any evidence of a causal nexus between these conditions and the offense charged.
Under these circumstances, we cannot conclude that the trial court erred when it failed to apply
mitigating factor (8). See State v. Treva Strickland, No. 03C01-9611-CC-00427, 1997 WL
785675, at *5 (Tenn. Crim. App., at Knoxville, Dec. 16, 1997) (stating that mitigating factor (8)
did not apply because there was no proof that defendant’s alleged mental condition significantly
reduced her culpability for the offenses); State v. Kenneth Blanchard, No. 01C01-9403-CR-
00099, 1995 WL 392902, at *7 (Tenn. Crim. App., at Nashville, July 6, 1995) (stating that
mitigating factor (8) did not apply because there was no proof about how the defendant’s mental
condition reduced his culpability in the incident for which he was convicted).
On appeal, the Defendant contends for the first time that the trial court should have
considered his mental condition under the “catch-all” provision of mitigating factor (13). The
trial court considered and applied mitigating factor (13) based upon the Defendant’s military
service. It did not, however, afford this factor greater weight based upon the Defendant’s mental
condition. This Court has held that an issue based on the failure of the trial court to consider
certain mitigating factors is not waived for purposes of appeal if there is evidence of such factors
in the record. State v. Lyle T. Van Ulzen and Billy J. Coffelt, No. M2004-02462-CCA-R3-CD,
2005 WL 2874654, at *3 (Tenn. Crim. App., at Nashville, Oct. 31, 2005), no perm. app. filed.
The Court noted:
The Sentencing Commission comments are clear that the trial court is required to
take into account all of the evidence presented at the trial and the sentencing
hearing. Therefore, if evidence of a mitigating factor or factors is present at the
trial or the sentencing hearing, the trial court is required to consider them in the
sentencing process.
Id. at *4. We will, therefore, address this issue on its merits.
We conclude that the trial court did not err by not affording mitigating factor (13) more
weight based upon the Defendant’s mental condition. There was little proof of the Defendant’s
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mental problems. The Defendant cursorily asserted that he had recently been diagnosed with
three mental disorders and that he was told he used drugs to self-medicate. The evidence does
not preponderate against the trial court’s refusal to afford mitigating factor (13) greater weight
based upon this testimony. The Defendant is not entitled to relief on this issue.
III. Conclusion
Based on the foregoing reasoning and authorities, we affirm the judgments of the trial
court.
______________________________
ROBERT W. WEDEMEYER, JUDGE
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