State of Tennessee v. Stevie Williamson ( 2020 )

03/16/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 3, 2019
STATE OF TENNESSEE v. STEVIE WILLIAMSON
Appeal from the Criminal Court for Shelby County
No. 16-02261 Lee V. Coffee, Judge
No. W2019-00437-CCA-R3-CD
The Defendant, Stevie Williamson, was convicted by a Shelby County Criminal Court
jury of attempt to commit second degree murder, a Class B felony; employing a firearm
during the commission of a dangerous felony, a Class C felony; unlawful possession of a
handgun by a convicted felon, a Class C felony; and reckless endangerment, a Class E
felony. See T.C.A. §§ 39-12-101 (2018) (criminal attempt), 39-13-210 (2018) (second
degree murder), 39-17-1324 (2018) (employment of a firearm), 39-17-1307 (2018)
(firearm possession by a convicted felon), 39-13-103 (2018) (reckless endangerment).
The trial court sentenced the Defendant to consecutive terms of twenty years for
attempted second degree murder, fifteen years and twelve years for the firearm
convictions, and six years for reckless endangerment, for an effective fifty-three-year
sentence. On appeal, the Defendant contends that the trial court erred (1) by admitting
evidence of the Defendant’s previous convictions and (2) by imposing consecutive
service of the sentences. We affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which CAMILLE
R. MCMULLEN and J. ROSS DYER, JJ., joined.
Harry E. Sayle III (on appeal), Memphis, Tennessee; Phyllis L. Aluko, District Public
Defender; and James Coleman (at trial) and John Schott (at trial), Assistant District
Public Defenders, for the appellant, Stevie Williamson.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistance Attorney General; Amy P. Weirich, District Attorney General; Kevin
McAlpin, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The Defendant’s convictions relate to the October 17, 2015 shooting of Alexander
Thompson. At the trial, Memphis Police Officer Alexander Fleites testified that he
responded to a shooting call and that he saw a man, who had suffered a gunshot wound,
lying in front of a home on the street or sidewalk area. Officer Fleites secured the scene
and conducted a preliminary investigation. He stated that the Defendant was not at the
scene, that witnesses identified the Defendant as the shooter, and that a “broadcast was
put out.”
Memphis Police Crime Scene Officer David Smith testified that he responded to
the scene but that no evidence was collected. The victim had already been transported to
the hospital when Officer Smith arrived, and Officer Smith did not see any cartridge
casings, bullets, and blood spatter. He took photographs of the scene, which were
received as exhibits.
Alexander Thompson testified that the shooting occurred outside his aunt’s home
and that he had been at the home with his aunt’s boyfriend, Shed Houston; his nephew,
Carey Webb; and several cousins. Mr. Thompson recalled that Marvin Grant, a cousin,
worked on a bicycle while Mr. Thompson worked on a car that was parked in the yard.
Mr. Thompson said that he had been working about thirty minutes when the shooting
occurred. Mr. Thompson said that the Defendant dropped off Mr. Houston’s niece, April
Boyce,1 and recalled that the Defendant and Ms. Boyce argued and that the Defendant
threw Ms. Boyce’s clothes out of the Defendant’s truck. Mr. Thompson said that Ms.
Boyce walked up the driveway and entered the home and that the Defendant left. Mr.
Thompson said that the Defendant returned, that he parked his truck on the opposite side
of the street “by the park,” that he cursed, and that he left again. Mr. Thompson said that
Ms. Boyce had been outside when the Defendant returned.
Mr. Thompson testified that the Defendant returned a third time, that the
Defendant walked up the driveway, and that Ms. Boyce ran inside the home when she
saw the Defendant. Mr. Thompson said that he was outside when the Defendant walked
up the driveway and that Mr. Houston, Mr. Webb, Mr. Grant, and several cousins were
outside, as well. Mr. Thompson said that Mr. Webb sat on a bench and could not see the
Defendant walking up the driveway, that the Defendant walked up to Mr. Webb, and that
the Defendant began beating Mr. Webb on the head. Mr. Thompson said he intervened,
striking the Defendant once, and told the Defendant, “Look, man. We don’t do that . . .
kind of stuff here.” Mr. Thompson said that he grabbed the Defendant’s arm, “walked
him down the driveway,” let go of him, and told him to leave. Mr. Thompson said that
1
The witness is referred to as April Boyce and April Boyd throughout the transcript. We use April Boyce
for consistency.
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the Defendant walked toward his truck but turned around and that the Defendant had a
handgun. Mr. Thompson said that he placed his hands in the air and asked the Defendant
if he were going to shoot him because of “some stuff just like this right here,” that the
Defendant shot him in the chest, and that the Defendant entered his truck and drove
away. Mr. Thompson denied attempting to hurt the Defendant and said he just wanted to
defuse the situation and to make the Defendant leave. Mr. Thompson denied having a
gun.
Mr. Thompson testified that although he knew the Defendant before the shooting,
they were not friends. Mr. Thompson crawled from the driveway to the street, lost
consciousness, and awoke to his aunt’s shaking him. The bullet that struck Mr.
Thompson “destroyed” a vertebra and had not been removed at the time of the trial. Mr.
Thompson was permanently paralyzed, and he said he “died twice” during his two-month
hospitalization.
On cross-examination, Mr. Thompson testified that he did not drink alcohol or use
controlled substances. He said that the Defendant returned about five minutes after
dropping off Ms. Boyce and cursed at her and that Mr. Webb was not at the home at this
time. Mr. Thompson said that Ms. Boyce went inside the home in response to the
Defendant’s cursing and that the Defendant drove away but returned about ten minutes
later, during which time Mr. Webb had arrived at the home. Mr. Thompson said that the
Defendant did not speak to anyone before repeatedly striking Mr. Webb.
Mr. Thompson testified that the Defendant did not retrieve the handgun from the
truck and that the Defendant had the gun when the Defendant arrived the third time.
After the shooting, Mr. Thompson saw the Defendant drive away before losing
consciousness.
Marvin Grant testified that he and Mr. Thompson were cousins, that Ms. Boyce
was his niece, and that Mr. Houston was his brother-in-law. Mr. Grant said that on the
day of the shooting, he was at Mr. Houston’s home working on his bicycle and cleaning
scrap metal and that Mr. Thompson was working on a car. Mr. Grant provided testimony
consistent with Mr. Thompson’s testimony regarding Ms. Boyce’s arrival at the home,
the Defendant’s and Ms. Boyce’s arguing, the Defendant’s leaving and returning to the
home, and the Defendant’s cursing at Ms. Boyce before leaving again. Mr. Grant said
that Mr. Webb arrived at the home, that the Defendant returned for a third time, and that
the Defendant yelled at Mr. Webb to “get out from beside my woman.” Mr. Grant
recalled Mr. Webb sat beside Ms. Boyce.
Mr. Grant testified that when the Defendant returned the third time, the Defendant
approached Mr. Webb and stated, “Didn’t I tell you to get away from beside my effing
woman,” before striking Mr. Webb three times. Mr. Grant said that Mr. Thompson
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intervened but that Mr. Grant feared what the Defendant might do if the Defendant were
able to enter the truck. Mr. Grant recalled that the Defendant said he was going to “blow
[Mr. Webb’s] head off” and that Mr. Grant knew a gun was inside the Defendant’s truck.
Mr. Grant said that he had seen the gun two days before the shooting. Mr. Grant
provided testimony consistent with Mr. Thompson’s testimony regarding Mr.
Thompson’s intervening, striking the Defendant once, and walking the Defendant down
the driveway and regarding the Defendant’s shooting Mr. Thompson and driving away.
Mr. Grant recalled that the children were in the yard when the shooting occurred and that
children from the park across the street walked to the home to find out what had
occurred.
On cross-examination, Mr. Grant testified that although he thought the
Defendant’s gun was inside the truck, the Defendant already had the gun. Mr. Grant said
that his relationship with the Defendant before the shooting had been “perfect.”
Carey Webb testified that Mr. Thompson was his uncle, that Ms. Boyce and Mr.
Grant were his cousins, and that the Defendant was his friend. Mr. Webb provided
testimony consistent with that of Mr. Thompson and Mr. Grant regarding the events
leading up to the assault against Mr. Webb. Mr. Webb stated that when the Defendant
arrived for the last time, the Defendant said, “[W]hy you standing around my woman?”
Mr. Webb said that the Defendant struck his head, causing him to “blink[] out for a little
while,” and that when he awoke, he saw Mr. Thompson “holding [the Defendant] down
the hill.” Mr. Webb said that he saw Mr. Thompson hold up his hands and heard a
gunshot but that he did not see who held the gun.
On cross-examination, Mr. Webb testified that Ms. Boyce reported the Defendant
had a gun but that Mr. Webb “didn’t think nothing of it.” Mr. Webb said that after Mr.
Thompson escorted the Defendant to the end of the driveway, the Defendant ran toward
the truck and then “came back” and that Mr. Webb heard a gunshot and saw Mr.
Thompson lying on the ground. Mr. Webb thought the Defendant retrieved something
from the truck but said he did not get up from where he sat until he heard the gunshot.
He said that before the shooting, the Defendant confronted him about an incident
involving Ms. Boyce’s burning the Defendant’s clothes. Mr. Webb denied having any
knowledge of the incident and having threatened the Defendant.
Memphis Police Detective Miranda Jones interviewed the Defendant, who
admitted that he was responsible for the “aggravated assault” because Mr. Webb had
threatened to rape the Defendant on a previous day. The Defendant told Detective Jones
that when he saw Mr. Webb at the home, he hit Mr. Webb on the jaw, that a man walked
toward him and “swung on [him],” that he “upped” his handgun, and that he shot the man
once. The Defendant stated that after the shooting, he left the scene and threw away the
handgun, which he bought “off the street.” The Defendant stated that although he was
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armed when he left his truck, he did not intend to shoot anyone until the man punched
him. The Defendant denied having any previous altercations with the man and stated, “It
was a mistake. I wasn’t trying to really shoot him.”
The Defendant elected not to present evidence.
Upon this evidence, the jury found the Defendant guilty of attempt to commit
second degree murder, employing a firearm during the commission of a dangerous
felony, and reckless endangerment. The Defendant was also convicted of possession of a
firearm while being a convicted felon. This appeal followed.
I. Defendant’s Previous Convictions
The Defendant contends that the trial court erred by determining that if the
Defendant elected to testify, the State would be permitted to question him for
impeachment purposes about his previous convictions for voluntary manslaughter and
aggravated assault. He argues that admission of the previous convictions violated
Tennessee Rule of Evidence 609 because the unfair prejudicial effect of the convictions
on the substantive issues outweighed the probative value of his credibility. The State
responds that the trial court did not abuse its discretion.
In a jury out hearing, the trial court determined that the voluntary manslaughter
and aggravated assault convictions occurred on August 3, 2004. The court noted the ten-
year limitation period for utilizing convictions for impeachment purposes pursuant to
Rule 609 but determined that the Defendant had displayed a “continuous pattern of
criminal conduct” and that the probative value of the convictions was not substantially
outweighed by the danger of unfair prejudice to the Defendant. The court determined
that although the offenses of aggravated assault and voluntary manslaughter were crimes
of violence and similar to the charged offenses in the present case, the probative value of
the convictions on the issue of credibility outweighed the unfair prejudicial effect on the
substantive issues. The court found that
If [the Defendant] takes the stand, and the issue becomes credibility
as to what he did or what he didn’t do, or what other people may have done,
or why he did what he did, according to his statement, because somebody
had wanted him to engage in homosexual acts, and that’s why he
approached Mr. Webb and shot the other person, because the other person
struck him, or was threatening to strike him.
If the issue is, in fact, credibility, this Court will find, as mandated
by [State v. Mixon, 983 S.W.2d 661 (Tenn. 1999),] and other cases, . . . the
probative value on the issue of credibility would, in fact, far outweigh any
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possible prejudice that could come with a jury being informed that [the
Defendant], in fact, does have those felony convictions.
And the Court, if [the Defendant] decides to testify, will give the
jury a limiting instruction indicating that, if they find [the Defendant] had
other convictions, other than those for which he is on trial, that they can use
that conviction only for the purposes of its effect, if any, on his credibility
as a witness.
But, if he . . . takes the stand and testifies, if he puts his credibility at
issue -- and I don’t know how he cannot put his credibility at issue when he
takes that stand and testifies -- those other convictions will, in fact, become
admissible for impeachment purposes on the . . . substantive issue[] of
credibility.
Trial counsel argued that voluntary manslaughter was a crime of passion and did
not involve a crime of dishonesty or false statement and that the conviction should not be
used for impeachment purposes. Counsel argued that the probative value of the
conviction was not substantially outweighed by the danger of unfair prejudice. The trial
court stated that although crimes of violence generally had little bearing on honesty, the
“potential prejudice is heavily outweighed by the probative value of the prior convictions
on the issue of credibility only.”
Evidence is relevant and generally admissible when it has “any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401,
402. Questions regarding the admissibility and relevance of evidence generally lie within
the discretion of the trial court, and the appellate courts will not “interfere with the
exercise of that discretion unless a clear abuse appears on the face of the record.”
Franklin, 308 S.W.3d at 809 (citing Lewis, 235 S.W.3d at 141).
A trial court abuses its discretion when it applies an incorrect legal standard or
reaches a conclusion that is “illogical or unreasonable and causes an injustice to the party
complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006). Relevant evidence,
however, “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403.
Tennessee Rule of Evidence 609 permits the use of previous convictions to
impeach a witness’s credibility so long as the crime was punishable by death or
imprisonment of more than one year or the crime involved dishonesty or false statements.
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Tenn. R. Evid. 609(a)(2). Impeachment evidence admitted pursuant to Rule 609(a) “is
limited to the fact of a former conviction and that the crime was committed.” State v.
Taylor, 993 S.W.2d 33, 35 (Tenn. 1999). Previous convictions cannot be admitted as
evidence to show a defendant’s propensity to commit the charged offense, regardless of
whether witness credibility is a central issue at a trial. See Tenn. R. Evid. 404(b). In
determining the admissibility of a defendant’s previous conviction pursuant to Rule 609,
a trial court must make findings relative to whether the conviction’s probative value on
the Defendant’s credibility outweighs the unfair prejudicial effect on the substantive
issues raised during the trial. State v. Thompson, 36 S.W.3d 102, 109 (Tenn. Crim. App.
2000); see Mixon, 983 S.W.2d at 674. Therefore, a trial court “must analyze the
relevance the impeaching conviction has to the issue of credibility,” “explain [the
relevance] on the record,” and “assess the similarity between the crime on trial and the
crime underlying the impeaching conviction.” Id. (internal quotation marks and citations
omitted); see State v. Waller, 118 S.W.3d 368 (Tenn. 2003); Neil P. Cohen et al.,
Tennessee Law of Evidence § 6.09[10][c] (6th ed. 2011). “If the court makes a final
determination that such proof is admissible for impeachment purposes, the accused need
not actually testify at the trial to later challenge the propriety of the determination.”
Tenn. R. Evid. 609(a)(3).
Relative to credibility, violent crimes “might reflect on the moral character of a
witness and therefore are not without probative value on credibility.” Cohen, §
6.09[10][c]; see State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996) (stating
“felonies of a violent nature reflect on the moral character of a witness . . . [, and] this
evidence is not usually without probative value”). However, “the link between [violent]
crime and truthfulness is, at best, weak and the potential prejudice is significant.” Cohen,
§ 6.09[10][c]; see State v. Barnard, 899 S.W.2d 617, 621-23 (Tenn. Crim. App. 1994);
Long v. State, 607 S.W.2d 482, 485-86 (Tenn. Crim. App. 1980) (stating crimes
involving assaultive conduct might result from causes that have “little or no direct
bearing on honesty or veracity”).
The impeaching convictions of voluntary manslaughter and aggravated assault and
the offenses for which the Defendant was on trial in the present case were crimes
involving violence. Although voluntary manslaughter and aggravated assault might be
relevant to the Defendant’s moral character and are not without minimal probative value
on his credibility, the connection between violent offenses and truthfulness is weak and
the potential prejudice created by the admission of the previous convictions is significant.
See Cohen § 6.09[10][c].
In determining that the Defendant’s previous voluntary manslaughter and
aggravated assault convictions were admissible for impeachment purposes, the trial court
was required to determine and explain the relevance of the convictions to the issue of
credibility and to assess the similarity between the present offenses and the impeaching
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convictions. See Thompson, 36 S.W.3d at 109. The court acknowledged the similarity
between the present offenses and the impeaching convictions due to all being violent
offenses but nonetheless determined that the probative value of the impeaching
convictions regarding the Defendant’s credibility outweighed the unfair prejudicial effect
on the substantive issues in the case. However, the court failed to explain this
determination and merely determined that if the Defendant chose to testify, the Defendant
placed his credibility in issue relative to the events that led to the shooting. The
Defendant was on trial for attempting to kill another person, and his previous convictions
involved assaulting and causing the death of another person. Although these impeaching
convictions could have held nominal probative value relative to the Defendant’s character
and to the jury’s ability to determine what occurred on the day of the shooting, the
relevance of the convictions to the Defendant’s credibility is not apparent from the
record. The fact that the impeaching convictions involve criminal conduct is insufficient
to establish admissibility pursuant to Rule 609. See Mixon, 983 S.W.2d at 674; State v.
Garry Baker, No. M2016-01164-CCA-R3-CD, 2017 WL 1534993, at *5-10 (Tenn. Crim.
App. April 28, 2017). As our supreme court had stated, “When an impeaching conviction
is substantially similar to the crime for which the defendant is being tried, there is a
danger that jurors will erroneously utilize the impeaching conviction as propensity
evidence of guilt.” Mixon, 983 S.W.2d at 674. As a result, we conclude that the trial
court abused its discretion by allowing the State to impeach the Defendant with the
previous convictions if he chose to testify. The previous convictions, at most, merely had
minimal probative value in assessing the Defendant’s moral character and credibility,
which was outweighed by the high prejudicial effect.
However, multiple witnesses provided consistent testimony regarding the
Defendant’s conduct before, during, and after the shooting, and the evidence of the
Defendant’s guilt was overwhelming. Therefore, we conclude that the error in this case
was harmless and that the Defendant is not entitled to relief on this basis.
II. Sentencing
The Defendant contends that the trial court erred by imposing consecutive service.
He argues that the record does not support the court’s determination that he 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 was high. The State
responds that the trial court did not abuse its discretion.
At the sentencing hearing, the presentence report was received as an exhibit. The
report showed that the forty-six-year old Defendant had previous convictions for
voluntary manslaughter, felony theft, eight counts of driving while his license was
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suspended, “attempt to commit a felony,” assault, vandalism, misdemeanor theft, and an
undefined offense.2 Likewise, the Defendant had previous juvenile adjudications for
burglary in the third degree, receiving and concealing stolen property, assault and battery,
robbery, petit larceny, disturbing the peace, carrying a dangerous weapon, malicious
mischief, trespassing on school property, and a curfew violation.
The report reflects that the Defendant completed the seventh grade and reported
leaving school for disciplinary reasons related to fighting. The Defendant expressed
during the presentence interview that he wanted to continue his education. The
Defendant reported fair mental health with treatment for attention deficit hyperactivity
disorder (ADHD) and good physical health, although he was being treated for high blood
pressure and diabetes. The Defendant denied using illegal narcotics but said he drank
alcohol twice per week until his arrest. The Defendant reported receiving mental health
treatment twice as a teenager for ADHD and having a good relationship with his family.
The Defendant reported previous employment and stated he had also performed “odd
jobs” for eighteen years.
The Defendant testified that he grew up living with his mother and brother. He
said that he completed the seventh grade, that he dropped out of school because of
fighting, and that he had been employed. He said that he had been diagnosed with
ADHD, that he obtained treatment for his mental “disability,” and that he worked with a
caseworker, who ensured he took his medication. He said that it was difficult for him to
remember things.
The Defendant testified that on the day of the shooting, he and his girlfriend
fought and that Mr. Thompson “came out of nowhere and struck” him. He said that Mr.
Thompson attempted to prevent him from getting into his truck, that he feared for his life,
and that he fired one shot toward Mr. Thompson. The Defendant said that he did not
intend to shoot or to kill Mr. Thompson and that it was a “mistake.” The Defendant said
that he had known Mr. Thompson for a couple of months at the time of the shooting and
that he had assisted Mr. Thompson in hauling away “scrap band.”
The Defendant testified that he had thought about the shooting, that he wanted to
apologize to Mr. Thompson, and that he sought mercy from the trial court. He said he
was sorry “for what happened” and that the shooting was a mistake. He said that he
turned himself in to the police after speaking with his brother, who worked at the
Memphis Police Department.
2
We note that although the presentence report does not reflect that the Defendant had a previous
conviction for aggravated assault, which was a conviction at issue for impeachment purposes, the record
reflects that the voluntary manslaughter and aggravated assault convictions stemmed from the same
indictment. The Defendant does not dispute having a previous conviction for aggravated assault.
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On cross-examination, the Defendant testified that he was claiming he acted in
self-defense, although he went to someone else’s home looking for a fight with Mr.
Webb. The Defendant later denied knowing he was going to fight Mr. Webb. The
Defendant said he went to the home to drink alcohol. He agreed Mr. Thompson struck
him once in an effort to stop the fight but said Mr. Thompson prevented him from getting
inside his truck. The Defendant thought his shooting Mr. Thompson was a reasonable
response to being struck once by Mr. Thompson.
The Defendant acknowledged that he had previous convictions for voluntary
manslaughter, aggravated assault, criminal attempt to commit a felony, which he testified
was related to a “break in” at a school, and two counts of felony theft. When asked why
he and Mr. Webb fought, the Defendant said “probably because Mr. Webb said he was
going to take my vehicle.” The Defendant said he had a handgun for protection, although
he knew he could not possess a handgun lawfully.
Upon examination by the trial court, the Defendant testified that when he was
convicted of his previous felonies, the trial judge told him that he could not possess a
handgun. The Defendant agreed that he had the handgun for protection and that he
placed the handgun inside his truck.
The trial court considered the evidence presented at the trial and at the sentencing
hearing, the arguments of counsel, the Defendant’s testimony and his potential for
rehabilitation, the nature and characteristics of the criminal conduct, the applicable
mitigating and enhancement factors, and the statistical data provided by the
Administrative Office of the Courts. The court determined that the Defendant had five
previous felony convictions and that, as a result, the Defendant was a Range II, multiple
offender for the attempt to commit second degree murder conviction and was a Range III,
persistent offender for the remaining convictions. The court noted that in addition to the
felony convictions, the Defendant had been convicted of assault, vandalism, three counts
of driving while his license had been suspended, and an unidentified offense. The court
found that the Defendant had juvenile delinquency adjudications for burglary in the third
degree and concealing stolen property and that each offense would have been a felony if
the Defendant had been an adult. The court noted additional adjudications for assault and
battery, petty larceny, disturbing the peace, carrying a dangerous weapon, malicious
mischief, and trespassing. The court determined that the Defendant had a previous
history of criminal convictions or behavior in addition to those necessary to establish the
appropriate range.
The trial court, likewise, applied enhancement factors (1), (6), (9), (11), and (16).
See T.C.A. § 40-35-114(1) (2018). The trial court determined that the Defendant
“invaded” another person’s property and engaged in belligerent, hostile activities without
provocation. The court found that no grounds existed to excuse the Defendant’s conduct.
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The court found the Defendant’s claim that he was threatened by Mr. Thompson’s
stopping a fight and punching the Defendant once was “insane” and “illogical.” The
court stated that “you cannot bring a gun to a fistfight when you initiated the fistfight.”
The court determined that the Defendant did not have a right to be at the home engaging
in unlawful conduct. The court determined that the Defendant had a sustained intent to
violate the law based upon his previous convictions “spanning his entire adult life.” The
court noted that the Defendant’s criminal conduct began at age thirteen and continued for
thirty-three years. See id. § 40-35-114(1) (“The defendant has a previous history of
criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range[.]”).
The trial court determined that the personal injuries inflicted upon Mr. Thompson
were particularly great. See id. § 40-35-114(6) (2108). The court stated that Mr.
Thompson had been an “able-bodied” person before the shooting and had merely
attempted to end an argument. The court found that Mr. Thompson had an extended
hospitalization and had been permanently paralyzed and confined to a wheelchair as a
result of his injuries. The court found that Mr. Thompson raised his hands when the
Defendant pulled out the handgun and that Mr. Thompson did not pose a threat to the
Defendant. The court also determined that the Defendant employed a firearm during the
commission of the attempted second degree murder, and it placed significant weight on
this factor. See id. § 40-35-114(9). The court applied factor (11) because the
Defendant’s conduct resulted in serious bodily injury to Mr. Thompson and threatened
serious bodily injury to others and because the Defendant had been convicted previously
of a felony that resulted in the death of another person. See id. § 40-35-114(11) (“The
felony resulted in . . . serious bodily injury, or involved the threat of serious bodily injury,
to another person, and the defendant had previously been convicted of a felony that
resulted in death or serious bodily injury[.]”). The court placed “extreme weight” on this
factor. The court, likewise, placed “great” weight on the Defendant’s juvenile
adjudications that would have been felony offenses if the Defendant had been an adult.
See id. § 40-35-114(16) (“The defendant was adjudicated to have committed a delinquent
act or acts as a juvenile that would constitute a felony if committed by an adult[.]”).
The trial court sentenced the Defendant as a Range II, multiple offender to twenty
years for attempted second degree murder. The court imposed Range III, persistent
offender sentences of twelve years for being a convicted felon in possession of a firearm
and fifteen years for employing a firearm during the commission of a dangerous felony.
The court also imposed a six-year sentence for reckless endangerment.
The trial court considered the State’s request to impose consecutive service on the
basis that the Defendant was a professional criminal who had knowingly devoted his life
to criminal acts as a major source of income. See id. § 40-35-115(b)(1) (2018). The
court found that the Defendant testified he had “never really worked” and that the
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Defendant’s criminal history was extensive. The court stated that it was difficult to
understand how the forty-six-year-old Defendant had supported himself without ever
having had a job but that insufficient evidence existed to support consecutive service on
this basis. See id.
The trial court, though, determined that consecutive service was warranted based
upon the Defendant’s extensive criminal history that spanned approximately thirty-three
years. See id. § 40-35-115(b)(2). The court found that the Defendant had multiple felony
and misdemeanor convictions and had numerous juvenile delinquency adjudications.
The trial court, likewise, determined that the Defendant was a dangerous offender
who had little hesitation about committing the present offenses in which the risk to
human lift was high. See id. § 40-35-115(b)(4). The court found that the circumstances
surrounding the offenses were “aggravated.” The court noted that the offenses began
with an argument between the Defendant and his then-girlfriend, escalated into an assault
resulting in the Defendant’s being punched and escorted to his truck, and ended with the
Defendant’s shooting Mr. Thompson in the presence of other people, including young
children. The court found that the shooting occurred in a residential neighborhood during
daylight hours.
The trial court, likewise, determined that an extended period of confinement was
necessary to avoid depreciating the seriousness of the offenses and to prevent the
Defendant’s criminal conduct from continuing. The court found that the Defendant’s
thirty-three-year criminal history established that the Defendant was unwilling to lead a
productive life. The court found that consecutive service was also warranted based upon
the “severity of the offense[s]” and the Defendant’s “background, when he had killed one
person, been convicted of an aggravated assault of another person, and almost killed . . .
another person.” The court stated that the community needed to be protected from the
Defendant’s further criminal conduct. The court imposed consecutive service of each
sentence, for an effective fifty-three-year sentence in confinement.
This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103, -210; State v. Moss, 727
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S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App.
1987)); see T.C.A. § 40-35-102 (2014).
Likewise, a trial court’s application of enhancement and mitigating factors are
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.
The abuse of discretion with a presumption of reasonableness standard also
applies to the imposition of consecutive sentences. State v. Pollard, 432 S.W.3d 851, 859
(Tenn. 2013). A trial court has broad discretion in determining whether to impose
consecutive service. Id. A trial court may impose consecutive sentencing if it finds by a
preponderance of the evidence that one criterion is satisfied in Tennessee Code
Annotated section 40-35-115(b)(1)-(7) (2014). In determining whether to impose
consecutive sentences, though, a trial court must ensure the sentence is “no greater than
that deserved for the offense committed” and is “the least severe measure necessary to
achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-103(2), (4)
(2014); see State v. Desirey, 909 S.W.2d 20, 33 (Tenn. Crim. App. 1995).
In order to impose consecutive sentences on the basis that a 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,” a trial court
must also find that the sentences “are reasonably related to the severity of the offenses”
and “are necessary in order to protect the public from further criminal acts”
by the defendant. State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995); see State v.
Moore, 942 S.W.2d 570, 574 (Tenn. Crim. App. 1996).
The record reflects that the trial court determined that the circumstances
surrounding the offenses were “aggravated,” noting that the offenses began as a domestic
dispute, escalated into an assault, and ended with the Defendant’s shooting Mr.
Thompson for attempting to intervene in the Defendant’s assault against Mr. Webb. The
incident occurred in the presence of children. The court found that consecutive service
was related to the “severity of the offenses.” Likewise, the court determined that
extended confinement was necessary to prevent the Defendant’s criminal conduct from
continuing based upon the Defendant’s thirty-three-year criminal history, which showed
that the Defendant was unwilling to lead a productive life. The court noted that the
Defendant had been previously convicted of voluntary manslaughter and determined that
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the community needed to be protected from the Defendant’s further criminal conduct.
We conclude that the trial court’s determinations are supported by the record and that the
court did not abuse its discretion by imposing consecutive service on the basis that the
Defendant is a dangerous offender. The Defendant is not entitled to relief on this basis.
Although the Defendant has not challenged the trial court’s imposition of
consecutive service on the basis that the Defendant is an offender whose record of
criminal activity is extensive, the record supports the court’s determination in this regard,
as well.
In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.
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ROBERT H. MONTGOMERY, JR., JUDGE
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