State of Tennessee v. Robert Fusco ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 19, 2011 Session
STATE OF TENNESSEE v. ROBERT FUSCO
Appeal from the Circuit Court for Montgomery County
No. 40900753 Michael R. Jones, Judge
No. M2010-01724-CCA-R3-CD - February 3, 2012
Following a jury trial, the Defendant, Robert Fusco, was convicted of two counts of
especially aggravated kidnapping, which were merged, and one count of each of the
following offenses: conspiracy to commit aggravated robbery, conspiracy to commit
aggravated kidnapping, attempted aggravated robbery, and aggravated burglary. See Tenn.
Code Ann. §§ 39-12-101, -12-103, -13-202, -13-304, -13-305, -13-402, -13-403, & -14-403.
The trial court determined that the Defendant was a Range II, multiple offender for
sentencing purposes and imposed an effective 65-year sentence. In this appeal as of right,
the Defendant raises the following issues: (1) whether the trial court erred in failing to
charge the lesser-included offense of attempted especially aggravated kidnapping; (2)
whether the assistant district attorney general committed prosecutorial misconduct during
closing argument; (3) whether the evidence is insufficient to support his convictions for
especially aggravated kidnapping, conspiracy to commit aggravated robbery, and conspiracy
to commit aggravated kidnapping; (4) whether his dual convictions for especially aggravated
kidnapping and attempted aggravated robbery violate due process concerns because the
restraint of the victim was not beyond that necessary to complete the robbery; (5) whether
the trial court erred by not merging his two conspiracy convictions because the offenses were
the object of the same agreement; (6) whether the trial court erred by using certain out-of-
state convictions to enhance his sentencing range; and (7) whether his sentence was
excessive.1 Following our review, we remand this case to the Montgomery County Circuit
Court for the entry of corrected judgments to reflect merger of the Defendant’s conspiracy
convictions. In all other respects, we conclude that there is no reversible error in the
judgments of the trial court and affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed
in Part; Reversed in Part; Remanded.
1
For the purposes of clarity and brevity, we have renumbered and reordered the issues as stated by the
Defendant in his brief.
D. K ELLY T HOMAS, J R., J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and J OHN E VERETT W ILLIAMS, JJ., joined.
Bryan P. Stephenson, Nashville, Tennessee, for the appellant, Robert Fusco.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; Helen O. Young, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
This appeal arises from the November 1, 2007 home invasion of John and Elke
Gilreath, who lived in Clarksville and owned a local jewelry store called the Golden Eagle.
On June 1, 2009, a Montgomery County grand jury returned an indictment against the
Defendant and his co-defendant, Kyle Swim, wherein the Defendant was charged with three
counts of especially aggravated kidnapping (alternative theories for the kidnapping of Elke)
and one count of each of the following offenses: conspiracy to commit aggravated robbery,
conspiracy to commit especially aggravated kidnapping, attempted especially aggravated
kidnapping (John), aggravated kidnapping (Elke), attempted aggravated kidnapping (John),
attempted aggravated robbery (John and Elke d/b/a Golden Eagle Jewelry), aggravated
burglary, and attempted first degree murder (Elke). The Defendant’s trial was conducted on
September 21 through 24, 2009.
The proof at trial, in the light most favorable to the State, revealed that the Defendant
and his 18-year-old co-defendant, Swim, residents of Florida, formulated a plan to rob the
Golden Eagle jewelry store in Clarksville, a location chosen by the Defendant. In furtherance
of their plan, the two men made five or six trips to Clarksville to gather information. They
learned that John and Elke Gilreath were the owners of the jewelry store and that the jewelry
store building formerly housed a bank, so they believed a vault filled with large amounts of
money was inside the store. They also followed the Gilreaths home from the store and
determined where they lived. Ultimately, the two men contrived to break into the Gilreaths’
home, abduct Mr. Gilreath while holding Mrs. Gilreath hostage, and force Mr. Gilreath to
take them to the jewelry store after hours to retrieve the valuables inside. During one of their
reconnaissance trips, they stayed at a Super Eight motel, and authorities later recovered a
receipt signed by Swim, which was entered into evidence.
They executed their plan on November 1, 2007. Some time between 8:30 and 9:00
a.m. that morning, Swim dropped the Defendant off about a block away from the Gilreaths’
home on Trahern Lane. The Defendant was armed with two handguns, a 25mm and a 9mm.
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After gaining entry into the home, the Defendant hid in the laundry room of the house for
several hours; Mrs. Gilreath was home when the Defendant entered that morning, but the
plan called for them to wait until Mr. Gilreath returned home from work. Throughout the
day, the Defendant and Swim exchanged text messages to stay apprised of the Gilreaths’
whereabouts. At some point, Mrs. Gilreath left the house and went to the store. When she
and Mr. Gilreath returned home in their respective vehicles later that day at approximately
5:10 p.m., Mr. Gilreath went to check the mail, and Mrs. Gilreath went to put something in
the laundry room. As Mrs. Gilreath entered, the Defendant jumped out, brandishing a
weapon, and said, “I’m here to kill you.” The Defendant placed Mrs. Gilreath in a chokehold
and held a gun to her head. Mr. Gilreath came running to the kitchen when he heard his wife
scream.
As Mr. Gilreath approached, the Defendant pointed his gun at Mr. Gilreath and
ordered, “Don’t move motherf---er, or I’ll kill you, and I’ll kill this b---h here.” Mr. Gilreath
responded, “No, you are not going to kill anybody, and I am going to get my gun and kill
you.” Mr. Gilreath then ran to his car to retrieve his handgun.
The Defendant “marched” Mrs. Gilreath into the kitchen, spun her around, and
slammed her into a door. The Defendant “held her left arm up, stood on one of her feet, and
pressed the gun to her forehead.” Mrs. Gilreath pleaded with the Defendant and told him that
she would give him anything he wanted, and the Defendant replied, “Shut up you f-----g b---
h, I am here to kill you. I am going to shoot you.” The Defendant then grabbed at Mrs.
Gilreath’s Rolex watch. As Mrs. Gilreath was bringing her arm down, the Defendant put the
gun against it and fired; the bullet went through her arm and into her chest. The Defendant
then grabbed Mrs. Gilreath by the hair and pushed her face into the floor, before fleeing.
On his way back inside the home, Mr. Gilreath was met by his wife, who had blood
squirting from a wound in her chest. He laid her on her stomach in the front yard and
gathered some towels to staunch the bleeding.
Swim relayed that at approximately 5:30 p.m., he was at Linda’s Pic-A-Rib on Tenth
Street, when the Defendant phoned him and told him that he had shot Mrs. Gilreath and
needed to be picked up so they could flee. Before leaving the Pic-A-Rib, Swim asked Melba
Cox, an employee of the restaurant, how to get to College Street. Also around 5:30 p.m, one
of the Gilreaths’ neighbors, Mr. Travis Tarpy, saw a man, who he later identified as the
Defendant, running through his backyard and phoned the police. Mr. Tarpy testified that the
Defendant was wearing a hooded sweatshirt. Soon after this, Harold McCarver encountered
the Defendant, who was on his cell phone, at B & D Garage; the Defendant asked McCarver
to direct him to College Street.
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Detective Tyler Barrett received a call about the shooting around 5:30 p.m. and began
looking for a light-skinned2 man wearing jeans and a hooded sweatshirt. As Det. Barrett
patrolled the area, he was flagged down by several men, who told him that someone was
hiding in a nearby building on College Street. Detective Barrett found the Defendant inside
the building with a cell phone in one hand and a gun in the other; he ordered the Defendant
to get on the ground, but when the Defendant remained standing, Det. Barrett warned him
that he would shoot if he did not do as he was told. The Defendant then dove under a nearby
truck, and it was only after Officer Bill Van Beber arrived on the scene that the two officers
were able to pull the Defendant from underneath the vehicle. The Defendant initially denied
having a weapon, but Officer Van Beber removed a 25mm handgun from the Defendant’s
left rear pocket. Another officer removed a pair of gloves from the Defendant’s person,
which gloves later tested positive for the presence of gunshot residue.
Swim finally arrived at the building on College Street, and after observing that the
Defendant had been taken into custody, he drove back to Florida. Swim was apprehended
several months later and incarcerated at the Montgomery County Jail. While there, he
encountered the Defendant and asked him why he had shot Mrs. Gilreath. The Defendant
answered that he shot her because he was “mad, pissed off.”
Detective Tim Anderson interviewed the Defendant shortly after the home invasion,
and the Defendant initially denied any involvement in the crime. After the Defendant was
told that Mrs. Gilreath would likely survive, the Defendant became more cooperative but still
denied shooting Mrs. Gilreath. It was only once Det. Anderson showed the Defendant the
text messages between the Defendant and Swim that were recovered from the Defendant’s
cell phone that the Defendant admitted his involvement. The Defendant claimed that he only
intended to fire a warning shot and that the shooting was accidental. He admitted to planning
the robbery, researching the Gilreaths prior to entering their home, and hiding in the laundry
room. The Defendant also provided information on the whereabouts of the 9mm handgun
he discarded as he was fleeing the scene.
Later, officers searched the area between the victims’ home and the building on
College Street; ultimately, the officers recovered a 9mm handgun in a ditch near the
Gilreaths’ home. The Rolex watch, originally thought to be stolen, was found several months
later inside the Gilreaths’ house; the watch was never turned over to the authorities.
At trial, the Defendant testified, claiming that he initially lied to the police to try and
protect Swim. He denied that their plan was to kidnap the Gilreaths in order to rob the
2
The exact of color of the assailant’s complexion, as opposed to the color of the Defendant’s complexion,
was disputed at trial.
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jewelry store, contending that he accidentally shot Mrs. Gilreath and that they only intended
to rob the Gilreaths at their home.
Following the conclusion of proof, the jury convicted the Defendant of two counts of
especially aggravated kidnapping, conspiracy to commit aggravated robbery, conspiracy to
commit aggravated kidnapping, attempted aggravated robbery, and aggravated burglary. The
especially aggravated kidnapping convictions were merged. A sentencing hearing was held,
and the trial court determined that the Defendant was a Range II, multiple offender. The trial
court ordered the Defendant to serve 10 years for each of the conspiracy convictions, 35
years for the merged especially aggravated kidnapping convictions, 10 years for the
attempted aggravated robbery, and 10 years for the aggravated burglary conviction. The
sentences for the conspiracy convictions were to be served concurrently with one another but
consecutively to the remaining convictions, which were likewise all consecutive terms,
resulting in a total effective sentence of 65 years in the Department of Correction. Timely
post-trial motions followed.
ANALYSIS
The Defendant appeals, alleging that the trial court committed multiple errors, both
at trial and in sentencing: (1) the trial court erred in failing to charge the lesser-included
offense of attempted especially aggravated kidnapping; (2) the assistant district attorney
committed prosecutorial misconduct during closing argument; (3) the evidence is insufficient
to support his convictions for especially aggravated kidnapping, conspiracy to commit
aggravated robbery, and conspiracy to commit aggravated kidnapping; (4) his dual
convictions for especially aggravated kidnapping and attempted aggravated robbery violate
due process concerns because the restraint of the victim was not beyond that necessary to
complete the robbery; (5) the trial court erred by not merging his two conspiracy convictions
because the offenses were the object of the same agreement; (6) the trial court erred by using
certain out-of-state convictions to enhance his sentencing range; and (7) his sentence was
excessive.
I. Jury Instruction on Attempt
The Defendant contends that the trial court erred by failing to instruct the jury on
attempted especially aggravated kidnapping as a lesser-included offense of especially
aggravated kidnapping. The Defendant acknowledges that he did not request the charge but
asserts that he nonetheless had a constitutional right that the jury be instructed correctly and
completely. Citing to State v. Burns, 6 S.W.3d 453 (Tenn. 1999), the Defendant submits that
plain error review is appropriate because reasonable minds could accept the evidence as
supporting a conviction of the attempt offense. The State responds that the Defendant has
waived review of this issue by failing to request the instruction at trial. The State further
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contends that plain error review is not warranted because the record on appeal, which does
not contain the jury instructions or any findings of fact, does not establish what occurred in
the trial court and because the Defendant failed to demonstrate that waiver of the issue was
not tactical.
As pointed out by the State, the Defendant failed to make a written request for this
jury instruction. “Absent a written request, the failure of a trial judge to instruct the jury on
any lesser included offense may not be presented as a ground for relief either in a motion for
new trial or on appeal.” Tenn. Code Ann. § 40-18-110(c). Similarly, our supreme court has
held that “if a defendant fails to request an instruction on a lesser-included offense in writing
at trial, the issue will be waived for purposes of plenary appellate review and cannot be cited
as error in a motion for new trial or on appeal.” State v. Page, 184 S.W.3d 223, 229 (Tenn.
2006). Therefore, we conclude that the issue regarding the attempted especially aggravated
kidnapping jury instruction is waived because the Defendant failed to file a written request.
However, our supreme court has also made clear that when a jury instruction is
waived for failure to request it in writing, an appellate court may still review the issue for
plain error. Id. at 230. “When necessary to do substantial justice, an appellate court may
consider an error that has affected the substantial rights of an accused at any time, even
though the error was not raised in the motion for a new trial or assigned as error on appeal.”
Tenn. R. App. P. 36(b). In determining whether plain error review is appropriate, the
following factors must be established:
(a) The record . . . clearly establish[es] what occurred in the trial court;
(b) a clear and unequivocal rule of law [has] been breached;
(c) a substantial right of the accused [has] been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and
(e) consideration of the error is “necessary to do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). On appeal, the defendant has the burden of
establishing that these five factors are met. State v. Gomez, 239 S.W.3d 733, 737 (Tenn.
2007) (“Gomez II”) (citing State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). The
appellate court need not consider all five factors if any single factor indicates that relief is
not warranted. Smith, 24 S.W.3d at 283.
Addressing the first plain error factor (whether the record clearly establishes what
occurred in the trial court), the Defendant admits that the jury instructions are not included
in the record on appeal, which is generally a prerequisite for plain error review of a lesser-
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included offense issue. Despite this admission, he gives the following explanation, making
the appropriate citations to the trial record, as to why we should grant plain error review:
[The Defendant] did not raise this issue in writing before the jury was
instructed, but he did raise it in his Motion for New Trial pursuant to T.R.A.P.
3. . . . Additionally, the jury instructions were apparently not included in the
record on appeal, and the court reporter did not transcribe the judge’s reading
of the instructions to the jury. However, the trial court’s denial on this ground
for relief in its Order denying the Motion for New Trial . . . acknowledges that
it did not instruct the jury on “Attempt” with respect to Counts Three and Four
(especially aggravated kidnapping).3 Further, the trial court’s reading of the
blank verdict form is included in the record on appeal, showing which lesser-
included offenses were instructed to the jury.
The Defendant is correct that the trial court’s reading of the blank verdict was transcribed
and is included in record on appeal, affirmatively showing which lesser-included offenses
were charged to the jury. Thus, we conclude that the first plain error factor has been met.
See State v. Glyn Dale, No. E2008-01139-CCA-R3-CD, 2010 WL 1241601, at *8 (Tenn.
Crim. App. Mar. 31, 2010), perm. app. denied, (Tenn. Aug. 25, 2010).
We begin our determination of whether a clear and unequivocal rule of law has been
breached by reviewing the standard established in State v. Burns, 6 S.W.3d 453 (Tenn. 1999),
for determining what constitutes a lesser-included offense:
An offense is a lesser-included offense if:
(a) all of its statutory elements are included within the statutory elements of the
offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains
a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or
public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise
meets the definition of lesser-included offense in part (a) or (b); or
3
The jury found the Defendant guilty in Counts 3 and 4 (which charged respectively use of a deadly weapon
and where the victim suffers serious bodily injury). Attempt was likewise not charged in Count 5 (which
charged to hold the victim as a shield or hostage), but the Defendant was acquitted of this count.
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(2) an attempt to commit the offense charged or an offense that
otherwise meets the definition of lesser-included offense in part (a) or (b); or
(3) solicitation to commit the offense charged or an offense that
otherwise meets the definition of lesser-included offense in part (a) or (b).
Burns, 6 S.W.3d at 466-67. Once a trial court concludes that an offense is a lesser-included
offense, then the court must apply the following two-step analysis to determine if a
lesser-included offense instruction is warranted:
First, the trial court must determine whether any evidence exists that
reasonable minds could accept as to the lesser-included offense. In making
this determination, the trial court must view the evidence liberally in the light
most favorable to the existence of the lesser-included offense without making
any judgments on the credibility of such evidence. Second, the trial court must
determine if the evidence, viewed in this light, is legally sufficient to support
a conviction for the lesser-included offense. This two-step analysis is
practical, can be easily applied by the trial courts, and remains broad enough
to preserve both the State’s and defendant’s rights to consider any
lesser-included offenses fairly raised by the proof.
Id. at 469. Generally, “evidence sufficient to warrant an instruction on the greater offense
also will support an instruction on a lesser offense under part (a) of the Burns test.” State v.
Allen, 69 S.W.3d 181, 188 (Tenn. 2002).
Under part (c) of the Burns test, attempted especially aggravated kidnapping is a
lesser-included offense of especially aggravated kidnapping. However, “part (c) of the Burns
test, . . . applies ‘to situations in which a defendant attempts to commit . . . either the crime
charged or a lesser-included offense, but no proof exists of the completion of the crime.’”
State v. Marcum, 109 S.W.3d 300, 303 (Tenn. 2003) (quoting State v. Ely, 48 S.W.3d 710,
719) (Tenn. 2001)) (emphasis added). In Marcum, the defendant, who was convicted of
rape, appealed the denial of his request for an attempted rape instruction. In affirming the
trial court’s denial, our supreme court reasoned as follows:
The testimony in this case was susceptible of only two interpretations—that
the rape occurred or that it did not. The victim’s testimony that the defendant
forced her to place her mouth “on” his “private part” is evidence that she
engaged in fellatio and, therefore, supports a rape instruction. The defendant
testified that this event never happened and, further, that he was never left
alone with the victim at all. There was no evidence of attempt, and the jury
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found [the victim] a more credible witness. Thus, no instruction on attempt
was warranted.
Id. at 304.
Here, the jury was instructed in Counts 3 and 4 on especially aggravated kidnapping
defined as “false imprisonment . . . [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
. . . or [w]here the victim suffers serious bodily ” Tenn. Code Ann. § 39-13-305(a)(1) & (4).
“A person commits . . . false imprisonment who knowingly removes or confines another
unlawfully so as to interfere substantially with the other’s liberty.” Tenn. Code Ann. § 39-
13-302(a). Attempted especially aggravated kidnapping, which the Defendant argues should
have been included in the jury instructions, occurs when a person, “acting with the kind of
culpability otherwise required for” especially aggravated kidnapping, does any of the
following:
(1) Intentionally engages in action or causes a result that would constitute an
offense if the circumstances surrounding the conduct were as the person
believes them to be;
(2) Acts with intent to cause a result that is an element of the offense, and
believes the conduct will cause the result without further conduct on the
person’s part; or
(3) Acts with intent to complete a course of action or cause a result that would
constitute the offense, under the circumstances surrounding the conduct as the
person believes them to be, and the conduct constitutes a substantial step
toward the commission of the offense.
Tenn. Code Ann. § 39-12-101(a).
The Defendant provides the following rationale to support his contention that an
attempt instruction was warranted under the facts:
The proof showed that [the Defendant’s] interaction with Mrs. Gilreath lasted
approximately 30 seconds (possibly less). The proof further showed that Mrs.
Gilreath was never restrained beyond [the Defendant’s] pointing of the gun at
her, and his arm briefly around her. She was never tied up, locked up, or
transported beyond her home. She was moved from one side of the kitchen to
just beyond the kitchen door, which was a very short distance. Although the
proof showed that [the Defendant] had a plan to rob Mrs. Gilreath while inside
her home, which depending on how it might have occurred may have in fact
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risen to the level of especially aggravated kidnapping, no such plan ever
occurred.
In its order denying the Defendant’s motion for new trial wherein he raised the issue of
failure to instruct on the lesser-included offense of attempted especially aggravated
kidnapping, the trial court ruled on the issue as follows:
Instruction—attempt to commit especially aggravated kidnapping: the
proof established beyond a reasonable doubt that the [D]efendant did complete
the act of kidnapping. Kidnapping is a continuing offense. If the [D]efendant
had accomplished his desired goal, he may have removed both victims from
their home, but such was not required. All of the proof established that the act
was completed and an attempt was not raised by the evidence.
It appears the “attempt” aspect of the Defendant’s argument, at least in part, focuses
on the supposition that the robbery of the home was not completed, and we note that the jury
did convict of the lesser-included offense of attempted aggravated robbery.4 However, this
argument ignores the fact that the kidnapping was complete regardless of the completion of
any robbery; the two are separate offenses, with separate elements.
The Defendant himself admitted that he placed Mrs. Gilreath in a chokehold, while
pointing a gun to her head. After Mr. Gilreath refused to cooperate, the Defendant forced
Mrs. Gilreath into the kitchen; Mrs. Gilreath pleaded for leniency all the while. The two then
struggled over her Rolex watch, and the Defendant shot her. He then grabbed Mrs. Gilreath
by the hair and pushed her face into the floor, before fleeing. The statutory elements of
especially aggravated kidnapping do not require a finding that Defendant moved the victim
any specific distance or restrained her for any particular length of time in order for the
Defendant’s actions to substantially interfere with her liberty. See State v. Turner, 41 S.W.3d
663, 670 (Tenn. Crim. App. 2000) (stating that especially aggravated kidnapping does not
require the above-listed elements); see also State v. Dixon, 957 S.W.2d 532, 535 (Tenn.
1997). We find no error in the trial court’s finding that the proof established beyond a
reasonable doubt that the Defendant completed the act of kidnapping.
Accordingly, the facts of this case simply do not support an attempt instruction. We
conclude that the trial court’s refusal to give the instruction did not violate a clear and
unequivocal rule of law, therefore, it did not constitute plain error. The Defendant is denied
relief on this issue.
4
We later discuss in this opinion that the robbery charge of the indictment delineated the place of the
robbery to be the jewelry store, not the Gilreaths’ home.
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We also note that, after addressing factor one, the State does not address factors 2 and
3 of Adkisson but instead focuses on the fourth factor in its brief, that the Defendant failed
to establish that he did not waive the issue for tactical reasons, citing to State v. Joshua
Shannon Sides, No. E2006-01356-CCA-R3-CD, 2008 WL 538983, at *3 (Tenn. Crim. App.
Feb. 28, 2008) (refusing to engage in plain error analysis where defendant was unable to
show that his waiver of instructions on lesser-included offense was not tactical), perm. app.
denied, (Tenn. Aug. 25, 2008). Briefly, we point out that here, just as in Sides, despite any
failure to instruct on the lesser-included offense, the invitation for further requests was issued
to counsel for both parties, and the Defendant did not request the lesser-included offense or
any other instructions. See id. For the foregoing reasons, the Defendant is not entitled to
plain error relief.
II. Closing Argument
The Defendant contends that the prosecutor committed prosecutorial misconduct in
her closing argument by expressing her personal opinion and by impermissibly predicting the
consequences of a “not guilty” verdict. The Defendant admits that he did not object to the
closing argument but asserts that plain error review is appropriate. The State responds that
the Defendant has waived the issue because he failed to lodge a contemporaneous objection.
The State further asserts that the Defendant cannot establish the need for plain error treatment
because he failed to make any argument on the subject in his appellate brief, failing to
demonstrate that the alleged misconduct affected a substantial right or that consideration of
the alleged error is necessary to do substantial justice.
Initially, we agree with the State that the Defendant failed to contemporaneously
object to the comments made by the prosecutor during closing argument, and typically, when
a prosecutor’s statement is not the subject of a contemporaneous objection, the issue is
waived. Tenn. R. Crim. P. 33 & 36(a); see also State v. Thornton, 10 S.W.3d 229, 234
(Tenn. Crim. App. 1999); State v. Green, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997);
State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992). Thus, if this court is to review
the claim of prosecutorial misconduct, we must again do so through the process of “plain
error” review embodied in Rule 36(b). This court will not grant relief on this issue unless
the alleged prosecutorial misconduct rises to the level of “plain error,” affecting a
“substantial right” of the accused. See Adkisson, 899 S.W.2d at 639. The State argues that,
while the Defendant makes a general allegation of plain error, he does so “without making
any argument to establish its existence”: “He has not demonstrated or even argued that the
alleged misconduct affected a substantial right or that consideration of the alleged error is
necessary to do substantial justice.” Because the Defendant does raise plain error in his brief
and supports this issue with some argument, albeit generally without specific delineation to
each Adkisson factor, we decline to conclude, on this basis alone, that the Defendant has
failed to carry his burden of demonstrating plain error.
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Proceeding with a plain error analysis, we note that the closing arguments are
transcribed and included in the appellate record; therefore, the first plain error factor is met.
We begin our determination of whether a clear and unequivocal rule of law has been
breached by re-affirming that trial courts have substantial discretionary authority in
determining the propriety of final argument, and although counsel is generally given wide
latitude, trial judges must restrict any improper commentary. See Coker v. State, 911 S.W.2d
357, 368 (Tenn. Crim. App. 1995). Closing arguments must be temperate, must be based
upon evidence introduced during trial, and must be relevant to the issues at trial. See State
v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). The State should refrain from argument
designed to inflame or incite the emotions of the jury. See Coker, 911 S.W.2d at 368.
We have previously observed that there are five generally recognized areas of
prosecutorial misconduct related to argument: (1) it is unprofessional conduct for the
prosecutor to intentionally misstate the evidence or mislead the jury as to the inferences it
may draw; (2) it is unprofessional conduct for the prosecutor to express his personal belief
or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant;
(3) the prosecutor should not use arguments calculated to inflame the passions or prejudices
of the jury; (4) the prosecutor should refrain from argument which would divert the jury from
its duty to decide the case on the evidence, by injecting issues broader than the guilt or
innocence of the accused under the controlling law or by making predictions of the
consequences of the jury’s verdict; and (5) it is unprofessional conduct for a prosecutor to
intentionally refer to or argue facts outside the record unless the facts are matters of common
public knowledge. State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003). When a
defendant makes allegations of prosecutorial misconduct, on appeal, this court reviews the
record to see “whether such conduct could have affected the verdict to the prejudice of the
defendant.” State v. Smith, 803 S.W.2d 709, 710 (Tenn. Crim. App. 1990). In other words,
it will be reversible error if the improper comments of the prosecutor were so improper or
the argument so inflammatory that it affected the verdict. See State v. Reid, 164 S.W.3d 286,
344 (Tenn. 2005); Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). The factors to
aid us in making this determination include:
(1) the conduct complained of viewed in context and in light of the facts and
circumstances of the case;
(2) the curative measures undertaken by the [c]ourt and the prosecution;
(3) the intent of the prosecutor in making the improper statement;
(4) the cumulative effect of the improper conduct and any other errors in the
record; and
(5) the relative strength or weakness of the case.
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State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (quoting Judge v. State, 539 S.W.2d 340,
344 (Tenn. Crim. App. 1976)); see also Goltz, 111 S.W.3d at 5-6.
The Defendant did raise the issue in his motion for new trial. In denying the motion
for new trial, the trial court ruled, “Prosecutor’s closing argument: this court finds nothing
inappropriate with the argument of the [S]tate as it was a fair comment on the evidence
presented.” On appeal, the State also contends that the Defendant has failed to demonstrate
any prosecutorial misconduct because the prosecutor’s statements were innocuous.
Regarding his first assignment of misconduct—that the prosecutor repeatedly used the
phrases “I think” and “I don’t think” with respect to the credibility of the witnesses and the
issue of guilt, thereby impermissibly injecting her personal opinions—the Defendant does
not provide in his brief what statements these phrases preface. The Defendant does provide
page citations, and we glean from our review of those pages cited that, prior to the first
instance the phrase was used, the prosecutor noted the number of exhibits and said that the
pace of the presentation was boring but necessary. She then said, “I think when you all saw
the evidence, you realized that.” We agree with the State that the comment in no way
expressed a belief in the truth or falsity of any testimony or evidence or in the guilt of the
Defendant.
The next time the phrase was used, the prosecutor said that she did “not think” that
several facts were “at issue”—specifically that there was a conspiracy to commit aggravated
robbery, that a burglary was committed, and that the Defendant attempted to commit an
aggravated robbery, taking a substantial step toward commission of the offense. She further
stated that she thought “the evidence weighed out pretty much like” she said it would during
opening argument, which statement she followed with a recitation of the facts in the light
most favorable to the State. The State correctly notes on appeal that the Defendant testified
to these facts and, therefore, the prosecutor aptly stated that they were not “at issue.” Not
only did the Defendant testify to these facts, but defense counsel admitted the Defendant’s
guilt in Counts 1 (conspiracy to commit aggravated robbery), 9 (attempted aggravated
robbery5 ), and 10 (aggravated burglary) during closing argument. Even if these statements
amount to misconduct, they were harmless as the Defendant’s guilt on those counts was not
disputed.
Later toward the conclusion of her initial closing, the prosecutor, addressing the
attempted first degree murder charge, stating that she thought the Defendant “planned to kill”
5
In closing argument, defense counsel did take issue with whether the attempted aggravated robbery was
of the jewelry store or of the Gilreaths’ home. This matter is addressed later in this opinion.
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when he entered the Gilreaths’ home. The Defendant was acquitted of the first degree
murder charge. Thus, if the statement amounts to misconduct, the error was harmless.
Next, the Defendant argues error based upon the fourth area of misconduct outlined
in Goltz—that the prosecutor diverted the jury from its duty to decide the case on the
evidence and predicted the consequences of the jury’s verdict. On this basis, the Defendant
takes issue with the following actions of the prosecutor during closing argument: she told the
jurors to “listen to [their] heart” when considering the evidence 6 ; she had the jurors twice
pause for 45 seconds—the approximate length of the encounter between the Defendant and
Mrs. Gilreath—instructing during the first pause to think about how Mrs. Gilreath felt during
that time period and during the second pause to imagine what decisions they could make in
that period of time; and she essentially told the jurors to consider how a verdict of not guilty
would affect Mrs. Gilreath. We agree with the State that these first three instances were
innocuous.
As for the allegation that the prosecutor told the jurors to speculate on how the
consequences of the verdict would affect Mrs. Gilreath, the Defendant refers to the following
comment made by the prosecutor during rebuttal argument: “You look at Elke Gilreath and
you tell her that forty-five seconds of pure terror that this man put her through -- you tell her
that that is not kidnapping, that he didn’t substantially interfere with her liberty?” Although
there may be no commentary on the consequences of an acquittal, the prosecution may point
out the gravity of a particular crime and emphasize the importance of law enforcement. See
State v. Dakin, 614 S.W.2d 812, 825 (Tenn. Crim. App. 1980); Bowling v. State, 458 S.W.2d
639, 641 (Tenn. Crim. App. 1970). The State submits that this statement was permissible
because the prosecutor offered no speculation on the results of the jury’s verdict in any way,
and the Defendant has failed to explain how the comments instructed the jury to imagine the
consequences of the verdict. We agree with the State that this comment did not actually ask
the jury to focus on the consequences of an acquittal, but rather focused on the fact, that
although short, 45 seconds is a sufficient amount of time to support a conviction for
kidnapping.
Under these circumstances, the Defendant has failed to establish that prosecutorial
misconduct occurred. Therefore, plain error relief is not warranted, and we need not proceed
with an examination of the remaining Adkisson factors. See Smith, 24 S.W.3d at 283 (the
appellate court need not consider all five factors if any single factor indicates that relief is
not warranted).
6
In bringing the initial argument to a close, the prosecutor surmised, “If you listen to your heart, and this
man is guilty. It’s easy, there is no doubt.”
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III. Sufficiency of the Evidence
The Defendant contends that the evidence was insufficient to sustain his convictions
of especially aggravated kidnapping and conspiracy (to commit aggravated robbery and to
commit aggravated kidnapping). Relative to the especially aggravated kidnapping
convictions, the Defendant asserts that “the brief time and slight physical distance pertaining
to the confinement or removal of Mrs. Gilreath” did not support his conviction for the
offense. As for the conspiracy convictions, the Defendant argues that the evidence was
insufficient because most of the evidence was provided by the uncorroborated testimony of
Swim, his co-defendant and accomplice. The State responds that the evidence was sufficient
to sustain the Defendant’s three convictions.
An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal 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). This
court does not reweigh the evidence; rather, it presumes that the jury has resolved all
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of
the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the
presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the
defendant has the burden of illustrating why the evidence is insufficient to support the jury's
verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
Our supreme court recently clarified that circumstantial evidence is as probative as
direct evidence. State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the
supreme court rejected the previous standard which “required the State to prove facts and
circumstances so strong and cogent as to exclude every other reasonable hypothesis save the
guilt of the defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v.
Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)) (quotation marks omitted). Instead, “direct
and circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” Id. at 381. The reason for this is because with both direct and circumstantial
evidence, “a jury is asked to weigh the chances that the evidence correctly points to guilt
against the possibility of inaccuracy or ambiguous inference . . . [and i]f the jury is convinced
beyond a reasonable doubt, we can require no more.” Id. at 380 (quoting Holland v. United
States, 348 U.S. 121, 140 (1954)). To that end, the duty of this court “on appeal of a
conviction is not to contemplate all plausible inferences in the Defendant’s favor, but to draw
all reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d
60, 67 (Tenn. 2011).
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A. Especially Aggravated Kinapping Convictions
The Defendant contends that the evidence is insufficient to support his two
convictions for especially aggravated kinapping, arguing that, at most, “the evidence may
have supported an attempt to commit that crime.” Specifically, he argues that due to “the
brief time and slight physical distance pertaining to the confinement or removal of Mrs.
Gilreath[,] . . . there was no evidence at trial that Mrs. Gilreath’s liberty was interfered with
‘substantially’ by the confinement or removal.”
As we have previously outlined in Section I of this opinion, the Defendant was
convicted of especially aggravated kidnapping as charged in Counts 3 and 4, defined
respectively as “false imprisonment . . . [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 . . . or [w]here the victim suffers serious bodily ” Tenn. Code Ann. § 39-13-
305(a)(1) & (4). “A person commits . . . false imprisonment who knowingly removes or
confines another unlawfully so as to interfere substantially with the other’s liberty.” Tenn.
Code Ann. § 39-13-302(a). “‘Serious bodily injury’ means bodily injury which involves: (A)
A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D)
Protracted or obvious disfigurement; or (E) Protracted loss or substantial impairment of a
function of a bodily member, organ or mental faculty[.]” Tenn. Code Ann. § 39-11-
106(a)(34). “Deadly weapon,” as applicable in this case, means “[a] firearm or anything
manifestly designed, made or adapted for the purpose of inflicting death or serious bodily
injury[.]” Tenn. Code Ann. § 39-11-106(a)(5)(A).
Our review of the record reveals that the evidence was sufficient for the jury to find
the Defendant guilty, beyond a reasonable doubt, of especially aggravated kidnapping. Both
Mrs. Gilreath and the Defendant testified that the Defendant placed Mrs. Gilreath in a
chokehold, while pointing a gun to her head. When Mr. Gilreath entered the kitchen and saw
what was happening in the laundry room, he refused to submit to the Defendant’s demands.
Mr. Gilreath left to retrieve his weapon from his car, and a struggle ensued between the
Defendant and Mrs. Gilreath. The Defendant forced Mrs. Gilreath into the kitchen, and as
Mrs. Gilreath was bringing her arm down, the Defendant put the gun against it and fired; the
bullet went through her arm and into her chest. Her injuries were life-threatening and
resulted in permanent impairment to her hand. As stated above, the statutory elements of
especially aggravated kidnapping do not require a finding that Defendant moved the victim
any specific distance or restrained her for any particular length of time in order for the
Defendant’s actions to substantially interfere with her liberty. See Turner, 41 S.W.3d at 670;
see also Dixon, 957 S.W.2d at 535. The facts are sufficient to show beyond a reasonable
doubt that the Defendant knowingly confined the victim by use of a deadly weapon and that
she suffered serious bodily injury as a result. Additionally, we have already determined that
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the Defendant’s attempt argument is without merit because the proof established that the
kidnapping was completed.
B. Conspiracy Convictions
The Defendant contends that his convictions for conspiracy to commit aggravated
robbery and conspiracy to commit aggravated kidnapping (Counts 1 and 2) should be
dismissed because the evidence was legally insufficient to support the jury’s finding of guilt.
Conspiracy “is committed if two (2) or more people, each having the culpable mental state
required for the offense that is the object of the conspiracy, and each acting for the purpose
of promoting or facilitating commission of an offense, agree that one (1) or more of them
will engage in conduct that constitutes the offense.” Tenn. Code Ann. § 39-12-103(a).
Specifically, the Defendant submits that these conspiracy convictions are based upon
the uncorroborated testimony of his accomplice, Kyle Swim. It is well-settled that in
Tennessee, “a conviction may not be based solely upon the uncorroborated testimony of an
accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). This “very salutary rule” is
designed to prevent the “obvious dangers” of allowing a defendant to be convicted solely on
the basis of an accomplice’s testimony. Sherrill v. State, 321 S.W.2d 811, 814 (Tenn. 1959).
However, Tennessee law requires only a modicum of evidence in order to sufficiently
corroborate the testimony of an accomplice. State v. Copeland, 677 S.W.2d 471, 475 (Tenn.
Crim. App. 1984).
Our supreme court has described what is required to establish sufficient corroboration
as follows:
[T]here must be some fact testified to, entirely independent of the
accomplice’s testimony, which, taken by itself, leads to the inference, not only
that a crime has been committed, but also that the defendant is implicated in
it; and this independent corroborative testimony must also include some fact
establishing the defendant’s identity. This corroborative evidence may be
direct or entirely circumstantial, and it need not be adequate, in and of itself,
to support a conviction; it is sufficient to meet the requirements of the rule if
it fairly and legitimately tends to connect the defendant with the commission
of the crime charged. It is not necessary that the corroboration extend to every
part of the accomplice’s evidence.
Shaw, 37 S.W.3d at 903 (quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)). The
corroborative evidence need not be “overwhelming.” Id. In fact, “[o]nly slight
circumstances are required to corroborate an accomplice’s testimony.” State v. Griffis, 964
S.W.2d 577, 589 (Tenn. Crim. App. 1997). However, “the corroboration must include some
-17-
fact establishing the identity of the defendant as a criminal actor.” State v. Boxley, 76
S.W.3d 381, 387 (Tenn. Crim. App. 2001) (citing Shaw, 37 S.W.3d at 903). Whether there
is sufficient corroboration is a determination for the jury. Shaw, 37 S.W.3d at 903.
The Defendant argues that Swim’s testimony “was the only piece of evidence that
mentioned a sustained conspiracy or plan to rob the Golden Eagle Jewelry Store[,]” noting
that the Defendant testified that they abandoned the plan to rob the jewelry store, deciding
to only to rob the Gilreaths in their home. However, as previously outlined,
[t]he quantum of evidence necessary to corroborate an accomplice’s testimony
is not required to be sufficient enough to support the accused’s conviction
independent of the accomplices testimony nor is it required to extend to every
portion of the accomplice’s testimony. . . . To the contrary, only slight
circumstances are required to corroborate an accomplice’s testimony.”
Griffis, 964 S.W.2d at 588-89 (citations omitted) (emphasis added).
In a light most favorable to the State, the evidence demonstrated that the Defendant
and Swim decided to rob the Golden Eagle jewelry store by breaking into the Gilreaths’
home, holding Mrs. Gilreath hostage, and forcing Mr. Gilreath to take them to the jewelry
store to retrieve the valuables therein. To this end, the Defendant and Swim made five or six
trips to Clarksville and scouted the store and the Gilreaths’ home. On November 1, 2007,
the Defendant entered the Gilreaths’ home to execute the plan to rob the jewelry store,
despite the fact that the plan later fell apart.
Swim’s testimony was corroborated by a Super 8 motel receipt from one of their
overnight stays in Clarksville and by text messages between the Defendant and Swim on the
day in question. In one text message, the Defendant wrote, “Watch 4 pops then off 2 shop
. . . .”7 In another message, the Defendant spoke of the need to act quickly once Mr. Gilreath
returned home, not wanting to risk Mr. Gilreath “trying to you know . . . .” The Defendant
wrote in another message that he planned to “snatch her ass up . . . get whts in the house . .
. then wait 4” Mr. Gilreath. Based upon consideration of the proof in the record before us,
we conclude that the evidence was sufficient to corroborate the testimony of the accomplice
Kyle Swim.
7
The Defendant in his reply brief argues that the State is asking this court “to make an unfounded
assumption about a text message.” He points to his own testimony where he claimed that “‘shop’ meant the
verb form of the word; that he and Swim would essentially ‘shop’ for a truck to purchase and then head out
to Las Vegas.” The precise meaning of this text was a determination for the jury; they were free to disregard
the Defendant’s testimony.
-18-
The Defendant’s argument, citing to numerous inconsistencies in Swim’s testimony,
is essentially that Swim’s testimony was unreliable; however, the jury choose to accredit this
testimony, as was its prerogative. The evidence is sufficient to support the Defendant’s
conspiracy convictions, and this issue is without merit.
IV. Dixon analysis
The Defendant, citing to Dixon, 957 S.W.2d 532, contends that his dual convictions
for especially aggravated kidnapping and attempted aggravated robbery violate due process
concerns because the confinement of Mrs. Gilreath was not beyond that necessary to commit
the attempted aggravated robbery of the Gilreaths’ home. The Defendant extrapolates further
that he did not confine Mrs. Gilreath in an attempt to prevent her from summoning for help
or to lessen his risk of detection and that his confinement of her did not create a significant
danger or increase her risk of harm. The State asserts that the Defendant’s argument is
misplaced because the Defendant was convicted of the attempted aggravated robbery of the
jewelry store, not of the Gilreaths’ home. The State also submits that the confinement of
Mrs. Gilreath was beyond that necessary to accomplish the robbery of the jewelry store,
created a significant danger to Mrs. Gilreath, and was intended to secure Mr. Gilreath’s
cooperation.
In State v. Anthony, our supreme court held that dual convictions for armed robbery
and aggravated kidnapping violate the due process guarantees of article I, section 8 of the
Tennessee Constitution when the confinement, movement, or detention of the kidnapping is
“essentially incidental” to the robbery. 817 S.W.2d 299, 306 (Tenn. 1991). Therefore, in
order for dual convictions to stand, the trial court must determine whether the confinement,
movement, or detention was significant enough, in and of itself, to warrant independent
prosecution. Id. As guidance, our supreme court noted that “one method of resolving this
question is to ask whether the defendant’s conduct ‘substantially increased [the] risk of harm
over and above that necessarily present in the crime . . . itself.’” Id. (quoting State v. Rollins,
605 S.W.2d 828, 830 (Tenn. Crim. App. 1980)). The court also admonished courts “to apply
the [kidnapping] statute narrowly, so as to make its reach fundamentally fair and to protect
the due process rights of every citizen.” Id.
Six years later, in Dixon, the court refined Anthony’s applicability to those cases to
“prevent the injustice which would occur if a defendant could be convicted of kidnapping
where the only restraint utilized was that necessary to complete the act of rape or robbery.”
957 S.W.2d at 534. Likewise, a separate conviction for kidnapping may stand for “any
restraint in addition to that which is necessary to consummate rape or robbery.” Id. at 535.
The court went further to establish a two-prong test for analyzing when a separate conviction
for kidnapping violates due process. First, the trial court must determine “whether the
movement or confinement was beyond that necessary” to commit the accompanying felony.
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Id. If so, the trial court must then ascertain “whether the additional movement or
confinement: (1) prevented the victim from summoning help; (2) lessened the defendant’s
risk of detection; or (3) created a significant danger or increased the victim’s risk of harm.”
Id.
More recently, in State v. Richardson, 251 S.W.3d 438 (Tenn. 2008), our supreme
court clarified the process for determining whether dual convictions for kidnapping and an
accompanying offense violate principles of due process. In Richardson, the court noted that
the two-part test pronounced in Dixon “fully replaces” the “essentially incidental” analysis
that was espoused in Anthony. 251 S.W.3d at 443. The court made clear that the Anthony
analysis “should not be used in conjunction with the Dixon two-part test” and that the Dixon
test is the exclusive test for “all future inquiries.” Id.
The State argues that the jury convicted the Defendant of the attempted aggravated
robbery of the Golden Eagle jewelry store, not, as alleged by the Defendant, of attempting
to rob the Gilreaths of personal property at their home. Therefore, the State contends that the
Defendant’s dual convictions do not raise due process concerns.
The record reflects that the jury convicted the Defendant of attempted aggravated
robbery “as charged in Count Nine.” Count Nine provides, in pertinent part, as follows:
[The Defendant] unlawfully, feloniously and knowingly did attempt to commit
the offense of Aggravated Robbery, as defined in TCA 39-13-402, of John and
Elke Gilreath, d/b/a Golden Eagle Jewelry, and the Defendants’ conduct did
constitute a substantial step toward the commission of said Aggravated
Robbery, to wit: Robert Fusco did enter the home of John and Elke Gilreath
and falsely imprison Elke Gilreath and attempted to falsely imprison John
Gilreath while Kyle Swim remained outside of the home and acted as a
lookout, in violation of TCA 39-12-101 . . . .
In fact, the Defendant himself even acknowledges this fact in his brief. In addressing the
sufficiency of the conspiracy counts, the Defendant notes that Count 1 alleges that the
Defendant and Swim conspired to rob the Gilreaths “d/b/a Golden Eagle Jewelry” but alleges
there was no corroborating proof supporting Swim’s testimony. He later changes positions
in his reply brief: “The State is asking this court to take a presumptive leap by concluding
that the addition of the words ‘d/b/a’ necessarily means that the jury found beyond a
reasonable doubt that the store itself was the only intended target.” Alternatively, the
Defendant submits that, even if the jury did find him guilty of the attempted robbery of the
jewelry store, this necessarily includes a robbery of the Gilreaths at their home. We agree
with the State that the Defendant was convicted of the attempted aggravated robbery of the
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jewelry store, not of the attempted aggravated robbery of the Gilreaths’ home. The
Defendant could possibly have been indicted for a separate count involving an attempted
aggravated robbery of the Gilreaths at their home, but we doubt this was what he desired.
Thus, the Defendant’s argument that the especially aggravated kidnapping of Mrs.
Gilreath was not beyond that necessary to commit the attempted aggravated robbery of the
Gilreaths’ home is without merit. Both of the cases cited by the Defendant in support of his
argument involve kidnappings that took place at the site of the robbery and, therefore, are
inapplicable here. See State v. Jason Lee White, No. M2009-00941-CCA-R3-CD, 2010 WL
1930951 (Tenn. Crim. App. May 12, 2010), perm. app. granted, (Tenn. Oct. 12, 2010); State
v. Raymond Griffin, No. W 2001-01332-CCA-R3-CD, 2002 WL 1482689 (Tenn. Crim. App.
Mar. 15, 2002), perm. app. denied, (Tenn. July 15, 2002).
Applying the Dixon standards to the facts of this case (which, as the Defendant
correctly notes, apply regardless of the target of the robbery), the record reflects that when
Mrs. Gilreath approached the laundry room of her home, the Defendant immediately jumped
out, brandishing a weapon and threatening to shoot. The Defendant then placed Mrs.
Gilreath in a chokehold and pointed the gun at her head. After Mr. Gilreath failed to comply
with the Defendant’s demands, a struggle between the Defendant and Mrs. Gilreath ensued.
Ultimately, the Defendant shot Mrs. Gilreath in the arm and the bullet went into her chest,
before he fled. We conclude that this additional movement and confinement exceeded what
was necessary to accomplish the attempted aggravated robbery of the jewelry store.
Turning to the second prong of the Dixon analysis, the evidence shows that the victim
was able to summon help from her husband who had gone outside to get the mail, despite the
fact that Mr. Gilreath then again left the residence to retrieve his handgun from the car.
However, the evidence also shows that the Defendant intended to secure Mrs. Gilreath in an
effort to secure Mr. Gilreath’s cooperation and lessen the Defendant’s risk of detection to
outsiders. Furthermore, the confinement created significant danger to Mrs. Gilreath, who
suffered life-threatening injuries, which resulted in permanent impairment to her hand.
Therefore, we conclude that the additional movement and confinement both “lessened the
[D]efendant’s risk of detection” and “increased the victim’s risk of harm.” Accordingly, dual
convictions for especially aggravated kidnapping and attempted aggravated robbery do not
violate due process under these facts and circumstances of this case. The Defendant is not
entitled to relief on this issue.
V. Merger of Conspiracy Convictions
Next, the Defendant argues that the trial court erred when it failed to merge the
conspiracy convictions under Counts 1 (to commit aggravated robbery) and 2 (to commit
aggravated kidnapping) and sentenced him separately under each count. Specifically, he
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asserts that his two conspiracy convictions should have merged because the facts sustaining
both convictions arose out of the same plan devised by he and Swim. The State concedes
error on this issue.
The Defendant raised the issue at sentencing. In ruling on whether the Defendant
could be sentenced separately for both convictions, the trial court determined as follows:
I do believe those are separate offenses, based on the peculiar facts of this
particular case in that there is actually -- could well have been two different
locations for robbery. Conspiracy to commit aggravated kidnapping would not
have necessarily have been necessary in the conspiracy to commit the
aggravated robbery at home, so I am go to -- I believe they are separate.
Contrary to the ruling of the trial court, the issue under Tennessee Code Annotated
section 39-12-103(c) is whether the multiple offenses were part of the same agreement, not
whether the offenses occurred, or could have occurred, at different locations. Tennessee
Code Annotated section 39-12-103 (c) provides as follows: “If a person conspires to commit
a number of offenses, the person is guilty of only one (1) conspiracy, so long as the multiple
offenses are the object of the same agreement or continuous conspiratorial relationship.”
Moreover, in addition to the statutory error, the Defendant has inferred a violation of his
constitutional rights to due process and to be free from double jeopardy in prosecution. See
State v. Ronallen Hardy, No. M2008-00381-CCA-R3-CD, 2009 WL 2733821, at *10 (Tenn.
Crim. App. Aug. 31, 2009).
In his testimony establishing the conspiracy, Swim discussed a single plan, and
although the plan involved multiple criminal acts at two locations, it was nonetheless part of
a single agreement between the two men. We conclude that the trial court erred when it
refused to merge the conspiracy convictions. See id. The case is remanded to the trial court
with instructions for the judgments to reflect merger of the Defendant’s conspiracy
convictions.
VI. Use of Out-of-State Convictions in Range-Determination
The Defendant contends that the trial court erred in considering his out-of-state
convictions for purposes of determining his status as a Range II, multiple offender. First, he
argues that the Florida convictions do not affirmatively show that he was represented by
counsel. Next, he submits that he was not transferred in Florida from juvenile to adult court
under a transfer statute that was similar to Tennessee’s transfer statute as required by
Tennessee Code Annotated section 40-35-106(b)(3)(A). He requests that we reduce his
sentence “to an appropriate length as a Range-I offender[.]”
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The trial court may sentence a defendant as a Range II, multiple offender when it finds
that the defendant 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”; or alternatively, “[o]ne (1) Class A prior felony conviction if the
defendant’s conviction offense is a Class A or B felony.” Tenn. Code Ann. § 40-35-
106(a)(1) & (2). For Range II purposes, a prior conviction includes
convictions under the laws of any other state, government or country that, if
committed in this state, would have constituted an offense cognizable by the
laws of this state. In the event that a felony from a jurisdiction other than
Tennessee is not a named felony in this state, the elements of the offense shall
be used by the Tennessee court to determine what classification the offense is
given.
Tenn. Code Ann. § 40-35-106(b)(5). In order to label a defendant as a multiple offender,
the trial court has to determine beyond a reasonable doubt that the defendant has the requisite
prior felonies. Tenn. Code Ann. § 40-35-106(c).
Following his jury trial, the Defendant was convicted of especially aggravated
kidnapping, a Class A felony, and multiple Class C felonies—conspiracy to commit
aggravated robbery, conspiracy to commit aggravated kidnapping, attempted aggravated
robbery, and aggravated burglary. The trial court utilized the following Florida convictions
in its range-determination analysis: two “Burglary of a Dwelling” convictions (Case
Numbers 98-0619 and 98-0704), determined to be akin to aggravated burglary, a Class C
felony, in Tennessee; and one conviction for “Burglary of a Conveyance” (Case Number 98-
0621) considered analogous to burglary of a motor vehicle in Tennessee, a Class E felony.8
Due to the Class E felony denomination of burglary of a motor vehicle, only the two
aforementioned convictions for burglary of a dwelling formed the basis to enhance the
Defendant’s range on the Class A felony sentence. Moreover, absent the two burglary of a
dwelling convictions, the Defendant would be a Range I, standard offender for all of his
convicted offenses, including the Class C felonies—because otherwise there would only be
one Class E felony applicable for range purposes. We also note that the Defendant was a
juvenile at the time he committed the burglary of a dwelling offenses in Florida, but his
convictions followed his transfer to adult criminal court; he was an adult at the time of the
offense date in the burglary of a conveyance conviction.
8
The Defendant does not take issue with the finding that these Florida convictions would likewise be felony
convictions in Tennessee.
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A. Representation of Counsel
Citing to Burgett v. Texas, 389 U.S. 109 (1967), and State v. Tansil, 72 S.W.3d 665(Tenn. Crim. App. 2001), the Defendant argues that the trial court erred by using his prior
Florida convictions to enhance his range without an affirmative showing that the Defendant
was represented by counsel at the time of these convictions. Initially, the State responds that
the Defendant has waived review of this issue by failing to raise the issue at the sentencing
hearing.9 Turning to the merits of the issue, the State contends that the Defendant’s argument
is misplaced because the line of cases he relies upon, namely State v. O’Brien, 666 S.W.2d
484 (Tenn. Crim. App. 1984), and its progeny, concern the improper use of uncounseled
misdemeanor driving under the influence (DUI) convictions to convert a misdemeanor DUI
to a felony, i.e, the enhancement of a sentence of the predicate offense because of the
existence of prior convictions for the same offense. Thus, according to the State, O’Brien
is inapplicable in range-determination and should be limited to its facts.
Replying to the State’s retort, the Defendant concedes that he did not raise this issue
at the trial court level, but he argues that “the implications of this error are substantial, and
accordingly, . . . asks this [c]ourt nonetheless conduct an appropriate review of this issue.”
Moreover, the Defendant asserts that regardless of the fact that the cases to which he cites
deal with DUI convictions, the principle should be applicable to sentencing, specifically
within the context of range-determination.
The question posed by the Defendant is controlled by Baldasar v. Illinois, 446 U.S.
222 (1980), and Burgett, 389 U.S. 109, which hold that prior convictions may not be used
to enhance punishment upon a subsequent conviction unless the prosecution affirmatively
established that the defendant was represented by counsel or waived his right to counsel at
the time of the prior convictions. In Baldasar, the United States Supreme Court opined that
an uncounseled misdemeanor conviction could not be used to enhance a subsequent
misdemeanor conviction by converting the subsequent conviction into a felony. In that case,
the record affirmatively showed that the defendant was not represented by counsel and did
not waive counsel at the time of the prior misdemeanor conviction. However, in Burgett, the
Court stated that a judgment which does not show on its face that the defendant was
represented by counsel or waived his right to counsel is presumptively void for purposes of
the enhancement of punishment upon a subsequent conviction. See also Tansil, 72 S.W.3d
at 667 (citing Burgett, 389 U.S. at 114-15, and holding that “written waiver of the right to
counsel is necessary for the facial validity of the judgment because the United States
Supreme Court has held that in the context of using a prior conviction against a defendant
9
Originally, the Defendant also argued that these convictions could not be used for enhancement purposes.
In his reply brief, he concedes that this argument was in error. See State v. Massey, 757 S.W.2d 350, 352
(Tenn. Crim. App. 1988).
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to support guilt or enhanced punishment for another offense, a record of a conviction that
does not show either the existence of counsel or the waiver of counsel is presumptively
void”). It follows that where the record is silent as to whether the defendant was represented
by counsel or waived his right to counsel at the time of the prior convictions, the prosecution
must affirmatively establish that the defendant’s prior convictions were counseled or not
counseled by virtue of waiver in order to rely upon the prior convictions to enhance
punishment for a second or subsequent offense. Tenn. Op. Att’y Gen. No. 84-161, 1984 WL
186253, at *2 (May 10, 1984).
This reasoning was adopted by this court in State v. O’Brien, which involved proof
of prior DUI convictions to support a conviction for fourth offense DUI. Although
stipulating that he had three prior DUI convictions, O’Brien challenged their use to enhance
his punishment because the State did not prove that he was represented by counsel or waived
the right to counsel in those prior cases. O’Brien, 666 S.W.2d at 485. This court agreed and
reversed the defendant’s conviction, relying upon Baldasar and Burgett, in determining that
the prosecution had the affirmative burden of establishing the validity of the prior
convictions in order to rely upon the prior convictions to enhance punishment in a subsequent
prosecution. The court held that under Baldasar, “an uncounselled misdemeanor conviction
could not be used to enhance a subsequent misdemeanor conviction by converting the
subsequent offense into a felony” or by otherwise enhancing the sentence of the predicate
offense because of the existence of prior convictions for the same offense. O’Brien, 666
S.W.2d at 485.
In State v. Massey, this court cautioned “that the principle recognized and applied in
O’Brien should not be applied wholesale to the sentencing situation.” 757 S.W.2d 350, 352
(Tenn. Crim. App. 1988). The Massey Court held that for purposes of determining the
appropriate length of the sentence, the trial court was not limited to consideration of prior
convictions in cases in which it affirmatively appeared that the defendant was represented
by counsel, but could also consider prior incidents of “criminal behavior” that bore upon the
sentencing determination. Id. Under the issue as presented by the Defendant, this appears
to be a case of first impression in Tennessee—whether the rationale of Baldasar, Burgett, and
O’Brien are applicable to convictions used for range-determination purposes which are silent
on the issue of whether the Defendant was represented by counsel.
Initially, we agree with the State that the Defendant has waived consideration of the
issue by failing to contemporaneously object to these convictions on this basis at the
sentencing hearing. See State v. Pierre Jackson, No. W2006-02127-CCA-R3-CD, 2008 WL
2053652, at *5 (Tenn. Crim. App. May 12, 2008), perm. app. denied, (Tenn. Dec. 8, 2008).
For the first time on appeal, the Defendant argues that his prior convictions should not have
been used to determine his range because the State did not affirmatively show that he was
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represented by counsel or waived his right to counsel in his Florida convictions. In reaching
its conclusion of waiver, the Jackson Court relied on the holding in State v. Albert Evans,
No. W2005-00161-CCA-R3-CD, 2006 WL 1381585 (Tenn. Crim. App. May 17, 2006),
perm. app. denied, (Tenn. Oct. 16, 2006):
wherein the defendant was convicted of first degree premeditated murder and
sentenced to life in prison without parole on the basis of the jury’s finding of
three aggravating circumstances, including that the defendant was previously
convicted of a felony whose statutory elements involved the use of violence
to the person. 2006 WL 1381585, at *14. He argued on appeal that no
competent evidence supported the application of the violent felony aggravator
because the State erroneously introduced a negotiated plea agreement form,
rather than a copy of the judgment, to prove the prior conviction. This court
held that the defendant waived the issue for appellate review by failing to
contemporaneously object to the introduction of the document or deny the
existence of the prior conviction. Id. at *15.
Jackson, 2008 WL 2053652, at *5. Similarly, we conclude that the Defendant in this case
waived plenary review of this assignment of error by not objecting contemporaneously to the
introduction of these convictions at the sentencing hearing and by not denying the existence
of these prior convictions. Id.
We feel further constrained to note that the Defendant received the State’s notice to
seek enhanced punishment and did not raise any objection to any of the convictions listed
therein. Tennessee Code Annotated section 40-35-202(a) provides guidance for the State in
preparing a notice to seek enhanced punishment:
If the district attorney general believes that a defendant should be
sentenced as a multiple, persistent or career offender, the district attorney
general shall file a statement thereof with the court and defense counsel not
less than ten (10) days before trial or acceptance of a guilty plea; provided, that
the notice may be waived by the defendant in writing with the consent of the
district attorney general and the court accepting the plea. The statement . . .
must set forth the nature of the prior felony convictions, the dates of the
convictions and the identity of the courts of the convictions. The original or
certified copy of the court record of any prior felony conviction, bearing the
same name as that by which the defendant is charged in the primary offense,
is prima facie evidence that the defendant named therein is the same as the
defendant before the court, and is prima facie evidence of the facts set out
therein.
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In other words, the statute requires at a minimum that the State file “(1) written notice, (2)
clearly expressing the State’s intention to seek sentencing outside of the standard offender
range, (3) setting forth the nature of the prior felony conviction, the dates of the convictions,
and the identity of the courts of the convictions.” State v. Livingston, 197 S.W.3d 710,
713-14 (Tenn. 2006). The purpose of the statutory notice requirement is to provide a
defendant with fair notice that he or she is subject to greater than the standard sentencing
range, to facilitate plea agreements, to enable the defendant to make an informed plea, and
to aid trial strategy. State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990); State v. Taylor, 63
S.W.3d 400, 412 (Tenn. Crim. App. 2001). Our supreme court has held that “perfect” notice
is not required, but fair notice must be provided. Livingston, 197 S.W.3d at 713. This means
that “when the State has substantially complied with Section 40-35-202(a), an accused has
a duty to inquire about an ambiguous or incomplete notice and must show prejudice to obtain
relief.” Taylor, 63 S .W.3d at 412; see also State v. Cooper, 321 S.W.3d 501, 507 (Tenn.
2010); State v. Richard Douglas Lowery, No. 03C01-9604-CC-00146, 1997 WL 260070, at
*5 (Tenn. Crim. App. May 19, 1997), perm. app. denied, (Tenn. Mar. 16, 1998).
In this case, the State filed a notice of intent to seek enhanced punishment pursuant
to section 40-35-202 on September 16, 2009, five days before the Defendant’s trial began on
September 21, 2009.10 The State listed the following convictions: 1. Grand Theft Third
Degree, Case Number 99-363CFAWS, Circuit Court, 7th Judicial Circuit, Volusia County,
Florida, Conviction Date 05/19/99; 2. Burglary of a Structure or Conveyance, Case Number
2004-00399CFAWS, Circuit Court, 7th Judicial Circuit, Volusia County, Florida, Conviction
Date 11/22/04; 3. Grand Theft (Motor Vehicle), Case Number 2004-00399CFAWS, Circuit
Court, 7th Judicial Circuit, Volusia County, Florida, Conviction Date 11/22/04; 4. Burglary
of a Dwelling, Case Number 98-0619CFAWS, Circuit Court, 7th Judicial Circuit, Volusia
County, Florida, Conviction Date 03/17/99; 5. Burglary of a Conveyance, Case Number 98-
0621CFAWS, Circuit Court, 7th Judicial Circuit, Volusia County, Florida, Conviction Date
03/17/99; 6. Grand Theft of the Third Degree, Case Number 98-0623CFAWS, Circuit Court,
7th Judicial Circuit, Volusia County, Florida, Conviction Date 03/17/99; 7. Burglary of a
10
We note that, while the notice to seek enhanced punishment was untimely because it was not filed ten days
prior to trial, the Defendant did not object to the untimely notice or request a continuance. Moreover, he has
made no attempt to raise this issue on appeal, and we cannot conclude that any prejudice resulted from the
untimely filing. See State v. Christopher Lamont Kelso,No. E2000-01602-CCA-R3-CD, 2001 WL 681313,
at *5 (Tenn. Crim. App. June 18, 2001) (citing State v. Stephenson, 752 S.W.2d 80, 81 (Tenn. 1988)
(wherein our supreme court held that the State’s failure to file a timely notice of intent to seek enhanced
range sentencing did not prevent the trial court from imposing sentence in an enhanced range, absent a
demonstration of prejudice to the defendant from the untimely notice; furthermore, in the absence of a
defense motion for continuance, any objection to the late-filed notice is waived)); see also State v. Gilmore,
823 S.W.2d 566, 571 (Tenn. Crim. App. 1991) (declaring that “the rule fashioned by the Supreme Court in
Stephenson is equally applicable to the 1989 version of Tenn. Code Ann. § 40-35-202(a)”).
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Dwelling, Case Number 98-0705CFAWS, Circuit Court, 7th Judicial Circuit, Volusia
County, Florida, Conviction Date 03/17/99; and 8. Grand Theft of the Third Degree, Case
Number 98-0705CFAWS, Circuit Court, 7th Judicial Circuit, Volusia County, Florida,
Conviction Date 03/17/99.
As previously noted, the trial court used only the burglary of a dwelling and burglary
of a conveyance convictions to enhance the Defendant’s range, and we will limit our analysis
to those prior convictions. At the sentencing hearing, the State introduced the respective
informations charging burglary of a dwelling and burglary of conveyance. The Defendant
does not challenge the burglary of a conveyance conviction, admitting that the judgment
clearly reflects that he was represented by counsel. The State attached to the informations
charging the burglary of a dwelling offenses the respective orders of probation; none of the
documentation regarding these two convictions reflects whether the Defendant was
represented by counsel or waived his right to counsel. No additional proof was offered at the
sentencing hearing on the subject, and the presentence report is silent on the matter.
For range enhancement purposes, a “certified copy of the court record of any prior
felony conviction, bearing the same name as that by which the defendant is charged in the
primary offense, is prima facie evidence that the defendant named therein is the same as the
defendant before the court, and is prima facie evidence of the facts set out therein.” Tenn.
Code Ann. § 40-35-202(a). However, the use of certified copies of the judgments is not the
only avenue for establishing the requisite prior convictions. See State v. Danny Anderson,
1986 WL 9307, at *3 (Tenn. Crim. App. Aug. 27, 1986). Our sentencing statute further
provides that
reliable hearsay including, but not limited to, certified copies of convictions
or documents, may be admitted if the opposing party is accorded a fair
opportunity to rebut any hearsay evidence so admitted; provided, that this
subsection shall not be construed to authorize the introduction of any evidence
secured in violation of the constitution of the United States or Tennessee.”
Tenn. Code Ann. § 40-35-209(b). This court has held that “prior convictions need not be
certified when they are otherwise reliable and the defendant has been given the opportunity
to rebut the evidence.” Anderson, 1986 WL 9307, at *3. In this case, the Defendant received
the State’s notice to seek enhanced punishment, and he did not challenge the validity of the
convictions at the sentencing hearing.
Once again, the Defendant is limited to “plain error” review pursuant to Rule 36(b)
of the Tennessee Rules of Appellate Procedure. The record is clear regarding what occurred
in the trial court; the first Adkisson factor is met. See Adkisson, 899 S.W.2d at 641-42.
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Turning to the second Adkissson factor, we cannot conclude that plain error exists in
this case because it is not evident that a clear and unequivocal rule of law has been breached.
See Jackson, 2008 WL 2053652, at *5. It is clear that the State must affirmatively show
representation or waiver of the right to counsel when dealing with enhancement of a sentence
of the predicate offense because of the existence of prior convictions, i.e, the subsequent use
of prior convictions to prove the actual elements of a criminal offense. It is also clear that
when considering enhancement factors under Tennessee Code Annotated section 40-35-114
in setting the length of a defendant’s sentence, the trial court is not limited to prior
convictions in which it affirmatively appeared that the defendant was represented by counsel
or waived said right. However, the precise issue presented here, whether the rationale of
Baldasar, Burgett, and O’Brien are applicable to convictions used for range-determination
purposes, lies somewhere in between, and no clear and unequivocal rule of law exists in this
situation.
In fact, the jurisprudence on the topic is anything but clear. First, we note that
Baldasar was a fractured opinion within which the plurality opinion merely referenced the
rationale “in the concurring opinions” but, in which, there were separate concurrences
without wholly consistent explanations for their results. See Baldasar, 446 U.S. at 224
(Stewart, J., concurring, joined by Brennan and Stevens, JJ.), (Marshall, J., concurring, joined
by Brennan and Stevens, JJ.), (Blackmun, J., concurring). Additionally, Baldasar was not
the last word on the matter from the United States Supreme Court. In 1994, the United States
Supreme Court held in Nichols v. United States that an uncounseled misdemeanor
conviction, not resulting in a term of incarceration, could be used for enhancement purposes,
expressly overruling Baldasar. See 511 U.S. 738, 746-49 (1994) (according criminal history
points pursuant to the then-mandatory United States Sentencing Guidelines for an earlier
uncounseled misdemeanor DUI conviction to determine a Guideline range for a subsequent
federal drug offense, shifting the mandatory Guidelines range upward by approximately two
years). In Nichols, the Supreme Court distinguished the sentencing context from guilt
determinations. Id. at 747 (“Reliance on such a conviction is also consistent with the
traditional understanding of the sentencing process, which we have often recognized as less
exacting than the process of establishing guilt.”). An important rationale from Nichols, that
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seemingly cannot be reconciled with Burgett,11 was that the subsequent use of the conviction
for enhancement purposes did not change the penalty for the prior conviction; rather, the
subsequent sentence punished only the subsequent offense. The Court in Nichols stated as
follows:
Enhancement statutes, whether in the nature of criminal history provisions
such as those contained in the Sentencing Guidelines, or recidivist statutes that
are commonplace in state criminal laws, do not change the penalty imposed for
the earlier conviction. As pointed out in the dissenting opinion in Baldasar,
‘[t]his Court consistently has sustained repeat-offender laws as penalizing
only the last offense committed by the defendant.’
Id. (quoting Baldasar, 446 U.S. at 232).
The Nichols decision has come under some scrutiny. In 2002, the United States
Supreme Court in Alabama v. Shelton distinguished Nichols as a case arising in the
sentencing context and held that an uncounseled conviction resulting in a suspended term of
incarceration violated the Sixth Amendment. 535 U.S. 654, 665 (2002) (a direct appeal
involving the imposition of the original suspended sentence). The Court stated that the Sixth
Amendment applies at the time a defendant is adjudicated guilty of an offense, whether
actual incarceration is imposed contemporaneously with the finding of guilt, or later
following some subsequent triggering event. Id. at 663-64. The court also rejected the
argument that the provision of counsel at a subsequent hearing surrounding the revocation
of the suspended sentence and imposition of a term of incarceration could make up for the
absence of counsel at the guilt phase. Id. at 667.
Post-Nichols . . . it is arguable that the fact of an actual constitutional
violation is, perhaps, not only an important factor for determining when a prior
conviction may be used for sentence enhancement purposes, but a required or
controlling factor. It also seems clear that, where the subsequent use is to
prove the actual elements of a criminal offense, Nichols is of questionable
11
The Court in Burgett provided the following rationale:
To permit a conviction obtained in violation of Gideon v. Wainwright[, 372 U.S. 335(1963),] to be used against a person either to support guilt or enhance punishment for
another offense is to erode the principle of that case. Worse yet, since the defect in the prior
conviction was denial of the right to counsel, the accused in effect suffers anew from the
deprivation of that Sixth Amendment right.
Burgett, 389 U.S. at 115 (internal citation omitted) (emphasis added).
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applicability, given that Court’s emphasis on the differences between
sentencing and guilt determinations.
United States v. Cavanaugh, 643 F.3d 592, 601 (8th Cir. 2011). In this case before us, there
still has not been any evidence provided that an actual Sixth Amendment violation occurred
during the conviction process of these two prior burglary of a dwelling convictions.
Nichols and Shelton, however, do not necessarily answer all questions regarding
permissible uses of prior convictions, id., and as we previously stated, the use of prior
convictions in Tennessee for range-determination purposes, lies somewhere in between. As
David Raybin has noted in the treatise Tennessee Practice: Criminal and Procedure, the
Nichols decision was decided on “constitutional grounds and federal procedures” and, in a
range-determination context, the “result would probably be different under Tennessee
procedure.” 11 David Louis Raybin, Tennessee Practice: Criminal Practice and Procedure
§ 32.54 (Sentencing hearing-Defendant’s record), at n.9 (2010-11) (emphasis added).
Moreover, analyzing the fifth Adkisson factor, we cannot conclude that consideration
of the error is necessary to do substantial justice. See Jackson, 2008 WL 2053652, at *5.
While Tennessee Code Annotated section 40-35-106(c) requires the trial judge to find that
a defendant is a multiple offender beyond a reasonable doubt, the section does not require
the a certified copy of the judgment form be introduced to establish the validity of the prior
conviction. See id. at *5 n.3. In Baldasar, Burgett, and Nichols, the Defendant objected to
the use of the prior conviction for the respective stated purpose at some point in the
proceedings in the court below. Here, although the documents submitted by the State to
establish the two prior convictions for burglary of a dwelling did not reflect the presence of
counsel or a waiver of that right, the Defendant at no time “‘put the State to its burden of
proof’ or otherwise challenged the accuracy of the conviction information.” See Lowery,
1997 WL 260070, at *5 (defendant argued that the record was “devoid of any evidence”
supporting the five prior convictions used to enhance his range; all five prior convictions
were mentioned in the notice, but the extent of the proof of the five qualifying convictions
was found only in the “Criminal History Report” and the transcribed comments of the trial
judge made at the sentencing hearing as he read from the original court file; this court
concluded that the trial court was justified in considering these convictions in support of the
enhancement of the range of sentence because the defendant did not challenge the
convictions in the court below). Where the Defendant did not challenge the reliability or
accuracy of the convictions, “he should not be heard now to claim that these two convictions
were not proven.” Id.
If we were to grant the Defendant a Range I sentence in this situation, it would always
be sound strategy for a defendant not to raise the issue in the trial court and wait to raise the
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issue on appeal. The Defendant has failed to establish that he is entitled to plain error relief.
See Jackson, 2008 WL 2053652, at *5 (defendant argued that his 1980 and 1993 DUI
convictions should not have been used to convict him of aggravated vehicular homicide
because the State did not affirmatively show that he was represented by counsel or waived
his right to counsel in those cases; this court held that defendant had waived the issue for
failing to contemporaneously object and that plain error relief was not warranted); see also
State v. Anthony Whited, No. M2010-00612-CCA-R3-CD, 2011 WL 6892352, at *10 (Tenn.
Crim. App. Dec. 27, 2011) (defendant, convicted of second degree murder and sentenced to
20 years as a violent offender, contended that “the trial court erred in enhancing his sentence
based in part upon prior convictions for which the State did not prove that the [d]efendant
either was represented by counsel or had executed a valid waiver of counsel when he was
convicted of each offense”; this court concluded that defendant waived this argument by
failing to object prior to trial when the State gave notice of convictions it intended to submit
for sentence enhancement or during the sentencing hearing).
B. Juvenile Transfer
The Defendant next contends that the procedures governing transfer from juvenile
court to criminal court differ in Florida and Tennessee; therefore, the juvenile transfer
statutes are not similar, as required by Tennessee Code Annotated section 40-35-
106(b)(3)(A). According to the Defendant, because the statutes are not similar, his prior
Florida convictions for burglary of a dwelling, procured when he was still a minor, cannot
be used to enhance his range. The State responds that this issue is without merit because
regardless of whether the transfer statutes are similar, the convictions were felony
convictions obtained in criminal court. The State asserts that the trial court was justified in
considering these convictions after determining that they would also have been felony
convictions in Tennessee.
When a defendant’s prior convictions are obtained while the defendant is still under
the age of majority, section 40-35-106(b)(3) applies in calculating the number of prior
convictions a defendant has received for range-determination purposes:
(A) A finding or adjudication that a defendant committed an act as a juvenile
that would constitute a felony if committed by an adult and that resulted in a
transfer of the juvenile to criminal court pursuant to § 37-1-134, or similar
statutes of other states or jurisdictions, shall not be considered as a prior
conviction for the purposes of this section unless the juvenile was convicted
of a felony in a criminal court[.]
(Emphasis added). In 2010, the legislature added an additional subsection to section (b)(3),
which provides as follows:
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(B) Notwithstanding subdivision (b)(3)(A), a finding or adjudication that a
defendant committed an act as a juvenile that would constitute a Class A or
Class B felony if committed by an adult shall be considered as a prior
conviction for the purposes of this section, regardless of whether the juvenile
was transferred to criminal court pursuant to § 37-1-134, or similar statutes of
other states or jurisdictions[.]
(Emphasis added).
The offense dates for the Defendant’s Florida burglary of a dwelling convictions are
March 21, 1998 and April 10, 1998. The pertinent sections of our 1998 statute outlined the
following procedure for transferring a juvenile defendant to criminal court:
(a) After a petition has been filed alleging delinquency based on conduct that
is designated a crime or public offense under the laws, including local
ordinances, of this state, the court, before hearing the petition on the merits,
may transfer the child to the sheriff of the county to be held according to law
and to be dealt with as an adult in the criminal court of competent jurisdiction.
The disposition of the child shall be as if the child were an adult if:
(1) The child was sixteen (16) years or more of age at the time of the
alleged conduct, or the child was less than sixteen (16) years of age if such
child was charged with the offense of first degree murder, second degree
murder, rape, aggravated rape, rape of a child, aggravated rape of a child,
aggravated robbery, especially aggravated robbery, kidnapping, aggravated
kidnapping or especially aggravated kidnapping or an attempt to commit any
such offenses. The district attorney general may not seek, nor may any child
transferred under the provisions of this section receive, a sentence of death for
the offense for which the child was transferred;
(2) A hearing on whether the transfer should be made is held in
conformity with §§ 37-1-124, 37-1-126 and 37-1-127;
(3) Reasonable notice in writing of the time, place and purpose of the
hearing is given to the child and the child’s parents, guardian or other
custodian at least three (3) days prior to the hearing; and
(4) The court finds that there are reasonable grounds to believe that:
(A) The child committed the delinquent act as alleged;
(B) The child is not committable to an institution for the
developmentally disabled or mentally ill; and
(C) The interests of the community require that the child be put
under legal restraint or discipline.
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(b) In making the determination required by subsection (a), the court shall
consider, among other matters:
(1) The extent and nature of the child’s prior delinquency records;
(2) The nature of past treatment efforts and the nature of the child’s
response thereto;
(3) Whether the offense was against person or property, with greater
weight in favor of transfer given to offenses against the person;
(4) Whether the offense was committed in an aggressive and
premeditated manner;
(5) The possible rehabilitation of the child by use of procedures,
services and facilities currently available to the court in this state; and
(6) Whether the child’s conduct would be a criminal gang offense, as
defined in § 40-35-121, if committed by an adult.
(c) The transfer pursuant to subsection (a) terminates jurisdiction of the
juvenile court with respect to any and all delinquent acts with which the child
may then or thereafter be charged, and the child shall thereafter be dealt with
as an adult as to all pending and subsequent criminal charges; provided, that
if a child transferred pursuant to this section is acquitted in criminal court on
the charge or charges resulting in such transfer, or if such charge or charges
are dismissed in such court, this subsection (c) shall not apply and the juvenile
court shall retain jurisdiction over such child. If a child is in the legal custody
of the department at the time of transfer, such custody shall terminate at the
transfer hearing, except that if a child is already committed to the department,
the court may determine if it is in the best interest of the child to remain in the
legal custody of the department until conviction occurs. In any case, legal
custody by the department shall terminate upon any conviction in adult
criminal court. If there is no conviction and charges so transferred are
dismissed or acquittal occurs, the presiding trial judge shall notify the
transferring juvenile court judge of such dismissal or acquittal so that the
juvenile court may at its discretion set a hearing to ascertain status of the child
as to the department’s custody.
(d) If a person eighteen (18) years of age or older is to be charged with an
offense that was alleged to have been committed prior to such person’s
eighteenth birthday, the petition shall be brought in the juvenile court that
would have had jurisdiction at the time of the offense. The juvenile court shall
either adjudicate the case under its continuing jurisdiction authority under §
37-1-102(b)(4)(B) and (C) or undertake transfer proceedings consistent with
this section.
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Tenn. Code Ann. § 37-1-134 (1998). The 1998 Florida law imposed the following the
guidelines when transferring a juvenile defendant to adult court:
985.226 Criteria for waiver of juvenile court jurisdiction; hearing on motion
to transfer for prosecution as an adult.--
(1) VOLUNTARY WAIVER.--The court shall transfer and certify a child’s
criminal case for trial as an adult if the child is alleged to have committed a
violation of law and, prior to the commencement of an adjudicatory hearing,
the child, joined by a parent or, in the absence of a parent, by the guardian or
guardian ad litem, demands in writing to be tried as an adult. Once a child has
been transferred for criminal prosecution pursuant to a voluntary waiver
hearing and has been found to have committed the presenting offense or a
lesser included offense, the child shall be handled thereafter in every respect
as an adult for any subsequent violation of state law, unless the court imposes
juvenile sanctions under s. 985.233(4)(b).
(2) INVOLUNTARY WAIVER.--
(a) Discretionary involuntary waiver.--The state attorney may file a
motion requesting the court to transfer the child for criminal prosecution if the
child was 14 years of age or older at the time the alleged delinquent act or
violation of law was committed. If the child has been previously adjudicated
delinquent for murder, sexual battery, armed or strong-armed robbery,
carjacking, home-invasion robbery, aggravated battery, or aggravated assault,
and is currently charged with a second or subsequent violent crime against a
person, the state attorney shall file a motion requesting the court to transfer and
certify the juvenile for prosecution as an adult, or proceed pursuant to s.
985.227(1).
(b) Mandatory involuntary waiver.--If the child was 14 years of age or
older at the time of commission of a fourth or subsequent alleged felony
offense and the child was previously adjudicated delinquent or had
adjudication withheld for or was found to have committed, or to have
attempted or conspired to commit, three offenses that are felony offenses if
committed by an adult, and one or more of such felony offenses involved the
use or possession of a firearm or violence against a person, the state attorney
shall request the court to transfer and certify the child for prosecution as an
adult or shall provide written reasons to the court for not making such request,
or proceed pursuant to s. 985.227(1). Upon the state attorney’s request, the
court shall either enter an order transferring the case and certifying the case for
-35-
trial as if the child were an adult or provide written reasons for not issuing
such an order.
(3) WAIVER HEARING.--
(a) Within 7 days, excluding Saturdays, Sundays, and legal holidays,
after the date a petition alleging that a child has committed a delinquent act or
violation of law has been filed, or later with the approval of the court, but
before an adjudicatory hearing and after considering the recommendation of
the juvenile probation officer, the state attorney may file a motion requesting
the court to transfer the child for criminal prosecution.
(b) After the filing of the motion of the state attorney, summonses must
be issued and served in conformity with s. 985.219. A copy of the motion and
a copy of the delinquency petition, if not already served, must be attached to
each summons.
(c) The court shall conduct a hearing on all transfer request motions for
the purpose of determining whether a child should be transferred. In making
its determination, the court shall consider:
1. The seriousness of the alleged offense to the community and
whether the protection of the community is best served by transferring the
child for adult sanctions.
2. Whether the alleged offense was committed in an aggressive,
violent, premeditated, or willful manner.
3. Whether the alleged offense was against persons or against
property, greater weight being given to offenses against persons, especially if
personal injury resulted.
4. The probable cause as found in the report, affidavit, or
complaint.
5. The desirability of trial and disposition of the entire offense
in one court when the child’s associates in the alleged crime are adults or
children who are to be tried as adults.
6. The sophistication and maturity of the child.
7. The record and previous history of the child, including:
a. Previous contacts with the department, the Department
of Corrections, the former Department of Health and Rehabilitative Services,
the Department of Children and Family Services, other law enforcement
agencies, and courts;
b. Prior periods of probation or community control;
c. Prior adjudications that the child committed a
delinquent act or violation of law, greater weight being given if the child has
previously been found by a court to have committed a delinquent act or
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violation of law involving an offense classified as a felony or has twice
previously been found to have committed a delinquent act or violation of law
involving an offense classified as a misdemeanor; and
d. Prior commitments to institutions.
8. The prospects for adequate protection of the public and the
likelihood of reasonable rehabilitation of the child, if the child is found to have
committed the alleged offense, by the use of procedures, services, and facilities
currently available to the court.
(d) Prior to a hearing on the transfer request motion by the state
attorney, a study and report to the court relevant to the factors in paragraph (c)
must be made in writing by an authorized agent of the department. The child
and the child’s parents or legal guardians and counsel and the state attorney
shall have the right to examine these reports and to question the parties
responsible for them at the hearing.
(e) Any decision to transfer a child for criminal prosecution must be in
writing and include consideration of, and findings of fact with respect to, all
criteria in paragraph (c). The court shall render an order including a specific
finding of fact and the reasons for a decision to impose adult sanctions. The
order shall be reviewable on appeal under s. 985.234 and the Florida Rules of
Appellate Procedure.
(4) EFFECT OF ORDER WAIVING JURISDICTION.--If the court finds,
after a waiver hearing under subsection (3), that a juvenile who was 14 years
of age or older at the time the alleged violation of state law was committed
should be charged and tried as an adult, the court shall enter an order
transferring the case and certifying the case for trial as if the child were an
adult. The child shall thereafter be subject to prosecution, trial, and sentencing
as if the child were an adult but subject to the provisions of s. 985.233. Once
a child has been transferred for criminal prosecution pursuant to an involuntary
waiver hearing and has been found to have committed the presenting offense
or a lesser included offense, the child shall thereafter be handled in every
respect as an adult for any subsequent violation of state law, unless the court
imposes juvenile sanctions under s. 985.233.
985.227 Prosecution of juveniles as adults by the direct filing of an
information in the criminal division of the circuit court; discretionary criteria;
mandatory criteria.--
(1) DISCRETIONARY DIRECT FILE; CRITERIA.--
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(a) With respect to any child who was 14 or 15 years of age at the time
the alleged offense was committed, the state attorney may file an information
when in the state attorney’s judgment and discretion the public interest
requires that adult sanctions be considered or imposed and when the offense
charged is:
1. Arson;
2. Sexual battery;
3. Robbery;
4. Kidnapping;
5. Aggravated child abuse;
6. Aggravated assault;
7. Aggravated stalking;
8. Murder;
9. Manslaughter;
10. Unlawful throwing, placing, or discharging of a destructive
device or bomb;
11. Armed burglary in violation of s. 810.02(2)(b) or specified
burglary of a dwelling or structure in violation of s. 810.02(2)(c);
12. Aggravated battery;
13. Lewd or lascivious assault or act in the presence of a child;
14. Carrying, displaying, using, threatening, or attempting to use
a weapon or firearm during the commission of a felony; or
15. Grand theft in violation of s. 812.014(2)(a).
(b) With respect to any child who was 16 or 17 years of age at the time
the alleged offense was committed, the state attorney may file an information
when in the state attorney’s judgment and discretion the public interest
requires that adult sanctions be considered or imposed. However, the state
attorney may not file an information on a child charged with a misdemeanor,
unless the child has had at least two previous adjudications or adjudications
withheld for delinquent acts, one of which involved an offense classified as a
felony under state law.
(2) MANDATORY DIRECT FILE.--
(a) With respect to any child who was 16 or 17 years of age at the time
the alleged offense was committed, the state attorney shall file an information
if the child has been previously adjudicated delinquent for murder, sexual
battery, armed or strong-armed robbery, carjacking, home-invasion
robbery,aggravated battery, or aggravated assault, and is currently charged
with a second or subsequent violent crime against a person.
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(b) Notwithstanding subsection (1), regardless of the child’s age at the
time the alleged offense was committed, the state attorney must file an
information with respect to any child who previously has been adjudicated for
offenses which, if committed by an adult, would be felonies and such
adjudications occurred at three or more separate delinquency adjudicatory
hearings, and three of which resulted in residential commitments as defined in
s. 985.03(45).
(c) The state attorney must file an information if a child, regardless of
the child’s age at the time the alleged offense was committed, is alleged to
have committed an act that would be a violation of law if the child were an
adult, that involves stealing a motor vehicle, including, but not limited to, a
violation of s. 812.133, relating to carjacking, or s. 812.014(2)(c)6., relating
to grand theft of a motor vehicle, and while the child was in possession of the
stolen motor vehicle the child caused serious bodily injury to or the death of
a person who was not involved in the underlying offense. For purposes of this
section, the driver and all willing passengers in the stolen motor vehicle at the
time such serious bodily injury or death is inflicted shall also be subject to
mandatory transfer to adult court. “Stolen motor vehicle,” for the purposes of
this section, means a motor vehicle that has been the subject of any criminal
wrongful taking. For purposes of this section, “willing passengers” means all
willing passengers who have participated in the underlying offense.
(3) EFFECT OF DIRECT FILE.--
(a) Once a child has been transferred for criminal prosecution pursuant
to information and has been found to have committed the presenting offense
or a lesser included offense, the child shall be handled thereafter in every
respect as if an adult for any subsequent violation of state law, unless the court
imposes juvenile sanctions under s. 985.233.
(b) When a child is transferred for criminal prosecution as an adult, the
court shall immediately transfer and certify to the appropriate court all
preadjudicatory cases that pertain to that child which are pending in juvenile
court, including, but not limited to, all cases involving offenses that occur or
are referred between the date of transfer and sentencing in adult court and all
outstanding juvenile disposition orders. The juvenile court shall make every
effort to dispose of all predispositional cases and transfer those cases to the
adult court prior to adult sentencing. It is the intent of the Legislature to
require all cases occurring prior to the sentencing hearing in adult court to be
handled by the adult court for final resolution with the original transfer case.
(c) When a child has been transferred for criminal prosecution as an
adult and has been found to have committed a violation of state law, the
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disposition of the case may be made under s. 985.233 and may include the
enforcement of any restitution ordered in any juvenile proceeding.
(4) DIRECT-FILE POLICIES AND GUIDELINES.--Each state attorney shall
develop and annually update written policies and guidelines to govern
determinations for filing an information on a juvenile, to be submitted to the
Executive Office of the Governor, the President of the Senate, the Speaker of
the House of Representatives, and the Juvenile Justice Advisory Board not
later than January 1 of each year.
Fla. Stat. §§ 985.226 & .227 (1998).
The Defendant argues that these two juvenile transfer statutes are not similar, noting
that unlike the transfer statute in Tennessee, Florida law mandates that particular offenses
be automatically transferred to adult court without a hearing. According to the Defendant,
in Florida, the prosecutor is vested with the exclusive discretion in certain cases to prosecute
a child in adult court; stated another way, the Florida statute gives prosecutors “discretion to
direct-file 16 and 17 year old offenders into adult court.” The Defendant does not say, and
the record does not reflect, whether the Defendant’s burglary of a dwelling convictions were
“direct-filed” into Florida adult court.
The Defendant asserts that “Tennessee has long recognized the great significance
created by transfer hearings, and noted the attendant constitutional implications.” Moreover,
the Defendant submits that the legislative changes in 2010 bolster his argument that for lower
level offenses, the “similar transfer statute requirement . . . must be strictly construed.”
Therefore, the Defendant contends that because these burglary of a dwelling convictions
should not have been considered due to the dissimilarities between the two transfer statutes,
he should have been sentenced as a Range I, standard offender. At the sentencing hearing,
the trial court found the Defendant’s argument to be meritless, reasoning as follows: “He
was, in fact, under the information that you have provided me, tried as an adult, based on the
transfer statute, whether we call it transfer statute or not that existed in Florida at the time.”
This court’s primary duty in construing a statute is “to ascertain and give effect to the
legislative intent without unduly restricting or expanding a statute’s coverage beyond its
intended scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995); see also State v. Davis,
940 S.W.2d 558, 561 (Tenn. 1997). Legislative intent should be gleaned from the “natural
and ordinary meaning of the language used, without a forced or subtle construction that
would limit or extend the meaning of the language.” Carter v. State, 952 S.W.2d 417, 419
(Tenn. 1997). Furthermore, this court should construe a statute so that its component parts
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are consistent and reasonable, and inconsistent parts should be harmonized, where possible.
State v. Odom, 928 S.W.2d 18, 30 (Tenn. 1996).
We conclude that the relevant comparison is not between the transfer statutes of the
two states but between the nature of juvenile and adult proceedings. As exemplified by the
lengthy transfer statutes outlined above, we do not believe that the legislature intended to
require sentencing judges to determine the nuances of the transfer statutes of the various
states in its range-determination. This holding does not run afoul the policy that juvenile
adjudications are not to be used in collateral matters. See State v. Butler, 626 S.W.2d 6, 10
(Tenn. 1981). “On those occasions when a juvenile is transferred to criminal court to be tried
as an adult, he or she is afforded the full panoply of constitutional rights accorded to criminal
defendants, including jury trials.” State v. Burns, 205 S.W.3d 412, 417 (Tenn. 2006). For
purposes of the range-determination statute, we conclude that the transfer proceeding in
Tennessee is similar to the transfer proceeding held in Florida in that both proceedings result
in a similar outcome—a determination of a juvenile’s legal status and tentative transfer to
adult criminal court. We think this to be a more sensible interpretation of section 40-35-
106(b)(3)(A) (“that resulted in a transfer of the juvenile to criminal court pursuant to § 37-1-
134, or similar statues of other states or jurisdictions . . . .”) than that proposed by the
Defendant.
Additionally, the 2010 change to section 40-35-106(b)(3) contradicts, rather than
bolsters, the Defendant’s argument that the “similar transfer statute requirement . . . must be
strictly construed.” The legislature has now seen fit to give juvenile adjudications even less
protection, by allowing the sentencing judge to consider acts that would constitute a Class
A or Class B felony regardless of whether the Defendant was transferred to criminal court
under our transfer statute or any other. During the discussion on the Senate floor of this 2010
amendment to the statue, Senator Doug Jackson noted that juvenile adjudications do not
involve the same constitutional guarantees afforded an accused in adult criminal court but
commented that the amended provision permits the use of those juvenile adjudications to
enhance a Defendant’s range. See Tenn. Senate Session, Debate on Senate Bill 3314, April
15, 2010. The Senate was not dissuaded by Senator Jackson’s comments and passed the
amendment into law.
Thus, even assuming arguendo, that the Defendant has raised a distinction between
Tennessee and Florida law pertaining to juvenile transfers, it is not a difference which is
relevant to the issue before this court. We agree with the State that, upon determining that
these Florida convictions would likewise be felony convictions in Tennessee, the trial court
properly considered them in establishing the Defendant’s range.
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VII. Imposition of Sentence
The Defendant challenges the length of his various sentences and their consecutive
nature. On appeal, the party challenging the sentence imposed by the trial court has the
burden of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).
When a defendant challenges the length, range, or manner of service of a sentence, it is the
duty of this court to 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. Tenn. Code
Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.
In conducting a de novo review of a sentence, this court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). The defendant’s potential for rehabilitation or
treatment should also be considered. See Tenn. Code Ann. § 40-35-103(5).
A. Length
The Defendant’s conduct occurred after the enactment of the 2005 amendments to the
Sentencing Act, which became effective June 7, 2005. The amended statute no longer
imposes a presumptive sentence. Carter, 254 S.W.3d at 343. As further explained by our
supreme court in Carter,
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].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes
and principles include “the imposition of a sentence justly deserved in relation
to the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a
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punishment sufficient “to prevent crime and promote respect for the law,”
[Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s
“potential or lack of potential for . . . rehabilitation,” [Tenn. Code Ann.] §
40-35-103(5).
Id. (footnote omitted).
The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing
of the enhancement and mitigating factors, as it rendered these factors merely advisory, as
opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing
law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that
is relevant to the sentencing determination, including the application of enhancing and
mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing
factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to
Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court
exercises when imposing a sentencing term. Id. at 344.
To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating or
enhancement factors or otherwise failed to follow the Sentencing Act, the presumption of
correctness fails and our review is de novo. Carter, 254 S.W.3d at 345.
Following his jury trial, the Defendant was convicted of especially aggravated
kidnapping, a Class A felony, and multiple Class C felonies—conspiracy to commit
aggravated robbery, conspiracy to commit aggravated kidnapping, attempted aggravated
robbery, and aggravated burglary. See Tenn. Code Ann. §§ 39-12-101, -12-103, -13-202, -
13-304, -13-305, -13-402, -13-403, & -14-403. As a Range II, multiple offender, the
Defendant faced a potential sentence of 25 to 40 years for his Class A felony conviction and
6 to 10 years for his Class C felony convictions. See Tenn. Code Ann. § 40-35-112(b). The
trial court imposed an enhanced sentence of 35 years for the Class A felony and enhanced
sentences of 10 years for each of the Class C felony convictions.
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In setting the length of the Defendant’s sentences, the trial court found two
enhancement factors12 to be applicable to all of the Defendant’s convictions: the Defendant
had a previous history of criminal convictions or criminal behavior, in addition to those
necessary to establish the appropriate range; and the Defendant was a leader in the
commission of the offense, citing to the Defendant and Swim’s testimony, the text messages
between the two men, and the fact that the Defendant chose the location. See Tenn. Code
Ann. § 40-35-114(1) & (2). The trial court found that two mitigating factors applied to the
Defendant’s various convictions: the Defendant assisted the authorities in locating and
recovering any property or person involved in the crime, noting the Defendant assisted the
authorities in locating the weapon he discarded as he was fleeing the Gilreaths’ home; and
the “catch-all” mitigating factor, noting that the Defendant gave a statement to the
authorities. See Tenn. Code Ann. § 40-35-113(10) & (13). The trial court declined to apply
as a mitigating factor to the especially aggravated kidnapping conviction that the Defendant
voluntarily released the victim. See Tenn. Code Ann. § 39-13-305(b)(2). In weighing the
various factors, the trial court stated that it assessed these two mitigating factors “some”
value.
The Defendant argues that the trial court erred in several ways. First, he submits that
the especially aggravated kidnapping sentence was not proportionate to the offense he
committed when his conviction “was based on facts that pale in comparison to other
kidnapping cases.” Second, he argues that the trial court gave the two enhancement factors
“undue weight.” Third, the Defendant further contends that the trial court erred by giving
“little weight” to the fact that he assisted the authorities by helping them find the weapon and
by disregarding the fact that he voluntarily released the victim alive. The State argues that
the Defendant’s argument that the court gave “undue weight” to certain enhancement factors
is misplaced because the 2005 amendments to the Sentencing Act preclude appellate review
of the weight assigned to these factors. Because the trial court considered the relevant
advisory factors and imposed a sentence consistent with the purposes and principles of the
Sentencing Act, the State asks us to affirm the sentence. Finally, the State asserts that the
record supports the trial court’s application and rejection of the proposed enhancement and
mitigating factors.
The Defendant makes no real argument that enhancement factor (1) did not apply,
only that the trial court gave it “undue weight” as “each of his prior cases was a non-violent
12
It was later clarified in the sentencing ruling that the trial court was also applying enhancement factor
(9)—the Defendant possessed or employed a firearm during the commission of the offense—to the
Defendant’s conviction for aggravated burglary. See Tenn. Code Ann. §40-35-114(9). This additional factor
was not necessary to support the sentences as imposed, but we note that the record does support its
application.
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property crime” and six of them occurred while he was juvenile. We conclude that this factor
was properly applied given that the Defendant had numerous previous convictions. As
previously noted in footnote 9 of this opinion, the Defendant’s argument that all of his
convictions must reflect his representation by counsel or waiver of that right in order for
them to be used for enhancement purposes has been found to be without merit; all of his
conviction can be considered regardless of whether the convictions reflect his representation
by counsel or waiver of said right. See Massey, 757 S.W.2d at 352. As delineated in the
State’s notice to seek enhanced punishment, it is clear that the Defendant had a plethora of
prior criminal convictions or criminal behavior adjudicated in adult court, in addition to those
convictions used to establish his Range II status. Moreover, based upon the evidence at trial,
the record supports the trial court’s determination that the Defendant was a leader in the
commission of the offense. Swim testified that the Defendant came up with the idea of
robbing the Gilreaths and their jewelry store. As found by the trial court, this was supported
by both the Defendant and Swim’s testimony at trial and by the text messages sent between
the two men on the day of the home invasion.
In its sentencing determination, the trial court did consider the mitigating factors
espoused by the Defendant, finding two factors to be applicable, and disregarding the fact
that the Defendant left the victim alive. We agree with the trial court that section 39-13-
305(b)(2) should not be applied as a mitigating factor in a situation, where as here, the victim
was shot and a bullet lodged in her chest, causing a life-threatening injury before the
Defendant fled from the scene; this is a correct conclusion regardless of the fact that the
victim ultimately lived and the fact that the jury later acquitted the Defendant of the murder
charge.
The weight to be given the various factors is within the broad discretion afforded our
trial courts. We conclude that the trial court did not err or abuse its discretion in setting the
Defendant’s various sentences at 35 and 10 years.
B. Consecutive Nature
As his last issue, the Defendant challenges the consecutive nature of his sentences.
Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in its
discretion, order sentences to run consecutively if it finds any one of the following criteria
by a preponderance of the evidence:
(1) The defendant is a professional criminal who has knowingly devoted the
defendant’s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal person so declared by a
competent psychiatrist who concludes as a result of an investigation prior to
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sentencing that the defendant’s criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose behavior indicates little or
no regard for human life, and no hesitation about committing a crime in which
the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances
arising from the relationship between the defendant and victim or victims, the
time span of defendant’s undetected sexual activity, the nature and scope of the
sexual acts and the extent of the residual, physical and mental damage to the
victim or victims;
(6) The defendant is sentenced for an offense committed while on probation;
or
(7) The defendant is sentenced for criminal contempt.
These criteria are stated in the alternative; therefore, only one need exist to support the
appropriateness of consecutive sentencing. However, the imposition of consecutive
sentencing is subject to the general sentencing principles that the overall sentence imposed
“should be no greater than that deserved for the offense committed” and that it “should be
the least severe measure necessary to achieve the purposes for which the sentence is
imposed[.]” Tenn. Code Ann. § 40-35-103(2) & (4).
The trial court found that factors (2) and (4) applied to the Defendant and ordered
consecutive sentences. The Defendant argues that the trial court erred in giving great weight
to his criminal history in determining that consecutive sentencing was warranted. The
Defendant admits that he had eight prior felony convictions but asserts that most of these
felony offenses should not have been considered pursuant to his previously dismissed Burgett
argument. The Defendant then contends that, even if they were properly considered, the trial
court gave them “undue weight,” once more noting that the crimes were non-violent property
crimes and that six of the convictions were committed while he was a juvenile. Additionally,
the Defendant argues that the trial court erred in giving great weight to the fact that he was
a dangerous offender, submitting that the evidence does not substantiate this finding when
the jury acquitted him of attempted first and second degree murder.
The State replies that the trial court properly ordered the Defendant to serve four of
his sentences consecutively because of the Defendant’s extensive criminal record and
because the Defendant was a dangerous offender whose behavior indicated little or no regard
for human life and no hesitation about committing a crime when the risk to human life was
high.
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We agree with the State. The evidence at the sentencing hearing supports the
conclusion that the Defendant had an extensive criminal record, the presentence report and
sentencing exhibits reflect numerous prior felony convictions. As found by the trial court,
the Defendant’s criminal record is “very, very extensive from the age of sixteen up through
the present age.”
Regarding the imposition of consecutive sentences because the Defendant was a
dangerous offender, the trial court complied with State v. Wilkerson, 905 S.W.2d 933, 938
(Tenn. 1995), and determined that the terms imposed were reasonably related to the severity
of the offenses committed and were necessary in order to protect the public from further
criminal acts by the offender. The facts of this case support this conclusion. As noted by the
trial court, the Defendant had only recently been released from the penitentiary before he
formulated this detailed plan to rob the Gilreaths and their jewelry store. The trial judge
found this to be “the worse case of non-homicide that [he had] seen in [his 40] years of
criminal practice[.]”
The presence of a single factor is enough to justify the imposition of consecutive
sentences. We affirm the trial court’s imposition of consecutive sentencing.
CONCLUSION
For the reasons articulated above, we remand the judgments for conspiracy to commit
aggravated robbery and conspiracy to commit aggravated kidnapping to reflect their merger.
In all other respects, we affirm the Defendant’s convictions and sentences.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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