State of Tennessee v. Andre Dotson ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 12, 2006 Session
STATE OF TENNESSEE v. ANDRE DOTSON
Appeal from the Criminal Court for Shelby County
Nos. 04-00868; 04-00869; 04-00870; & 04-00871 Joseph B. Dailey, Judge
No. W2005-01594-CCA-R3-CD - Filed November 29, 2006
The defendant, Andre Dotson, appeals from his 2005 Shelby County Criminal Court jury convictions
on two counts of aggravated robbery and two counts of robbery. On appeal, the defendant claims
that the trial court erred (1) in joining four indictments for trial, (2) in severing, on the morning of
trial, the charges against a co-defendant, (3) in excluding the co-defendant’s pretrial statement as
evidence offered by the defendant, (4) in failing to hold that the evidence was insufficient to support
three of the convictions, (5) in denying the defendant’s motion to allow him to sit with his attorney
at the counsel table, (6) in failing to instruct the jury as to the shortcomings of eyewitness testimony,
and (7) in sentencing the defendant as a multiple offender on two convictions and as a persistent
offender on two convictions. We reverse one conviction of robbery but affirm the court’s judgments,
as modified.
Tenn. R. App. P. 3; Judgments of the Criminal Court are Reversed in Part and
Affirmed in Part.
JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JERRY L. SMITH , J.,
joined. JOHN EVERETT WILLIAMS, J., filed a separate dissenting opinion.
William C. Gosnell, Memphis, Tennessee (on appeal); and Melvin J. Werner, Memphis, Tennessee
(at trial), for the Appellant, Andre Dotson.
Michael E. Moore, Acting Attorney General & Reporter; David H. Findley, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Nicole Germain, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
The defendant stands convicted of four robberies, two of them aggravated by the use
of a deadly weapon. The convictions established that between July 11 and August 27, 2003, the
defendant and another individual robbed cases of cigarettes from four wholesale distributor trucks
making deliveries to retail stores. The alignment of offenses and the respective resulting convictions
and sentences are as follows:
Indictment Offense date Victim Charge/conviction Sentence Alignment
871 July 11 Herbert robbery 10 years Consecutive to all
Crain others
870 August 5 Gabriel robbery 10 years Consecutive to all
Shears others
869 August 13 Willis aggravated robbery 17 years Consecutive to all
Yarbrough others
868 August 27 DeAngelo aggravated robbery 17 years Consecutive to all
Mitchell others.
Herbert Crain testified that he was employed as a delivery truck driver by Forrest City
Grocery in Memphis and on July 11, 2003, was unloading merchandise at Liberty Mart from the side
door of his truck’s trailer. His assistant, Kevin Young, had taken a load of merchandise into the store
when a man entered the trailer and told Mr. Crain to leave the trailer. When Mr. Crain
unsuccessfully tried to close the trailer door to trap the intruder inside, the intruder, while threatening
to shoot Mr. Crain, “put[] his hand low.” Mr. Crain testified that the intruder and a second man
loaded 128 cartons of cigarettes into a blue “mid to late 80’s” Chevrolet Lumina bearing a dealer tag
and drove away. Mr Crain could not identify either of the men. Mr. Young, Mr. Crain’s assistant,
testified that, when he came out of the store to return to the truck, he clearly saw the intruder in the
trailer. In the courtroom, Mr. Young positively identified the defendant as one of the robbers and
testified that, on September 5, 2003, he had selected the defendant’s picture from a photographic
array furnished by the police.
Another employee of Forrest City Grocery, Gabriel Shears, testified that on August
5, 2003, he was unloading merchandise from a delivery truck at a BP store on Shelby Drive. While
he was placing merchandise on a dolly beside the truck, the truck driver, Keith Richardson, was
inside the truck trailer. A car bearing two men arrived, one of whom entered the trailer and started
moving cases of cigarettes to the door. The second man loaded the cases in the car. Mr. Shears
testified that the man in the trailer told Mr. Richardson to “get back,” and the two tussled “a little
bit.” He heard the man tell Mr. Richardson that he would blow Mr. Richardson’s brains out “or
something like that.” Although Mr. Shears admitted that he did not see a gun, he saw the intruder
in the trailer grab his jeans pocket, and realizing the man might have a gun, Mr. Shears became
afraid. He testified that, on September 5, 2003, he viewed a photographic array furnished by the
police and selected a picture of the defendant as the man who entered the trailer on August 5.
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Willis Yarbrough testified that he drove a delivery truck for H.T. Hackney Company
to a Walgreen’s store in Shelby County on August 13, 2003. He had no assistant and was inside the
cargo area of the truck when a man entered and told him to go to the front of the cargo area. Mr.
Yarbrough was afraid and complied, and the man began passing cases of cigarettes to a second man
on the ground. At trial, he identified the defendant as the intruder and further testified that, on
September 12, 2003, he selected the defendant’s picture from a photographic array furnished by the
police.
DeAngelo Mitchell testified that on August 27, 2003, he was employed by Forrest
City Grocery as an assistant on a delivery truck and was unloading merchandise at Yung’s Food
Market. While he was inside the trailer, a man entered, raised his shirt to reveal the butt of a pistol,
and told Mr. Mitchell not to move. The presence of the gun scared Mr. Mitchell. The man began
moving cases of cigarettes to the trailer door, and a second man put the cases into a “Delta ‘88”
automobile that bore no license plate. Employees of Yung’s Food Market called the police. At trial,
Mr. Mitchell identified the defendant as the man who entered the trailer and affirmed that he had also
selected the defendant’s picture from a photographic array furnished by the police.
Memphis police officers testified that they apprehended the defendant and the second
man on August 27, 2003. Responding to a call from Yung’s, the police dispatcher described the
robbers’ car and the two men occupying it. When a police officer saw the dark Oldsmobile and tried
to detain it, it sped away. More than one police cruiser pursued the car until it stopped, and the two
occupants fled on foot. The officers gave chase and apprehended the defendant and a second man.
Inside the Oldsmobile, they found cases of cigarettes.
The officers determined that the Oldsmobile’s owner was a Ms. Victor Frayser, who
was a girlfriend of the defendant’s August 27 companion. Ms. Frayser consented to a search of a
Chevrolet Lumina parked at her residence, and inside the trunk, the officers found four to six cases
of cigarettes.
Officer David Ayers admitted that the Memphis Police Department had received
reports of cigarette thefts from delivery trucks for about 90 days preceding July 11, 2003.
After the State rested its case in chief, the defendant conducted a voir dire of Robert
Finley,1 a co-defendant whose trial had been severed from that of the defendant. Mr. Finley invoked
his constitutional right not to testify in the defendant’s trial. The defendant then moved to introduce
into evidence Mr. Finley’s pretrial statement, but the trial court denied the motion.
The defendant testified in his own behalf that he committed a theft from the Forrest
City Grocery truck at Yung’s on August 27, 2003, but he denied that he was involved in any of the
other charged offenses. He denied that the August 27 theft was a robbery and denied that he
1
In his testimony, the defendant refers to M r. Finley as “Rodney.”
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possessed a weapon during that offense. He testified that he had been previously incarcerated for
several months and had not been released until July 4, 2003.
Based upon the evidence, the jury convicted the defendant of the robberies of Mr.
Crain and Mr. Shears and of the aggravated robberies of Mr. Yarbrough and Mr. Mitchell. We turn
to the issues raised by the defendant on appeal.
I. Severance of Offenses
In the defendant’s first issue, he claims that the trial court erred “in allowing the
defendant to be tried on all four indictments at one trial.” Specifically, he posits that the State moved
orally and belatedly to consolidate four indictments for trial and that the trial court erroneously held
that the State established a common scheme or plan as a basis for consolidation. The State responds
that, even though the motion to consolidate was made orally on the morning of the first scheduled
day for trial, the trial court did not err in granting the motion. Alternatively, the State claims that,
if the consolidation was error, it was merely harmless error.
The analysis of severance issues is similar to peeling an onion. Because of the
interplay of disparate rules, the removal of a layer often exposes another layer that must be
exfoliated. We begin with the standard and scope of our review.
A. Standard and Scope of Review
The issue of the propriety of a trial court’s consolidation of indictments or severance
of charges is reviewed on appeal for abuse of discretion. State v. Spicer, 12 S.W.3d 438, 442 (Tenn.
2000); State v Shirley, 6 S.W.3d 243, 247 (1999). The trial court’s resolution of the issue will be
reversed only when that court (1) applied an incorrect legal standard or (2) reached an illogical
decision that resulted in injustice to the complaining party. Spicer, 12 S.W.3d at 442.
To consolidate separate indictments under Tennessee Rule of Criminal Procedure
8(b), the State need show nothing more than that the offenses are “of the same or similar character.”
Tenn. R. Crim. P. 8(b)(2); Spicer, 12 S.W.3d at 443. However, the legal standard applied to the
issue of mandatory severance of charges, as opposed to consolidation, is different: A defendant has
an “absolute right” pursuant to Tennessee Rule of Criminal Procedure 14(b)(1) “to a severance of
offenses permissively joined, unless the offenses are parts of a common scheme or plan and the
evidence of one offense ‘would be admissible upon the trial of the others.’” Spicer, 12 S.W.3d at
443; see Tenn. R. Crim. P. 14 (b)(1). In Spicer, our supreme court also held that, “when a defendant
objects to a pre-trial consolidation motion by the state, the trial court must consider the motion by
the severance provisions of [Tennessee] Rule [of Criminal Procedure] 14(b)(1), not the ‘same or
similar character’ standard of Rule 8(b).” Spicer, 12 S.W.3d at 443. In other words, a defendant’s
objection to the State’s motion to consolidate charges from separate indictments transforms the trial
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court’s inquiry into one of whether the defendant is entitled to a severance. See Tenn. R. Crim. P.
14(b)(1).2
In the present case, the defendant did not move for a severance of charges, but he did
object to the State’s motion to consolidate. Thus, despite the absence of a defense motion to sever,
we review the issue for abuse of the trial court’s discretion in determining whether the various
offenses shared a common scheme or plan and whether evidence of one would be admissible in the
trial of the others.
To reiterate, this standard is more demanding than the one applied to permissive
joinder of offenses, which involves a determination that the offenses “are of the same or similar
character.” See Tenn. R. Crim. P. 8(b)(2). We note that the offenses in the present case were surely
of the same or similar character, but that characterization does not resolve the issue whether the trial
court should have respected the right of the defendant to have the charges severed.
B. Trial Court Procedure
Due to the nature of the issue, the determination whether multiple charges based on
alleged multiple offenses should be joined or separated for trial must be presented and resolved
before trial. Bruce v. State, 213 Tenn. 666, 670, 378 S.W.2d 758, 760 (1964); see Tenn. R. Crim.
P. 13(b) (providing that trial court may order severance of offenses before trial); Tenn. R. Crim. P.
14(a)(1)(A) (providing that defendant, except in the event of a later arising ground, shall move to
sever offenses “before trial”). When such an issue is presented, the trial court must resolve it before
trial from the “evidence and arguments presented at [a consolidation/severance] hearing,” Spicer,
12 S.W.3d at 445, by determining whether (1) the multiple offenses were part of a common scheme
or plan, (2) evidence of one is relevant to some material issue in the trial of the other offenses, and
(3) “the probative value of the evidence of other offenses is not outweighed by the prejudicial
effect.” Id.3
2
Spicer teaches that
a rule that requires a defendant to formally move for a severance immediately after the
objection to consolidation is overruled makes little practical sense[,] emphasize[s]
technicality of procedure over substantive fairness, . . . add[s] unjustifiable expense and delay
to the proceedings, and . . . defeat[s] the very purposes to be served by the Rules of Criminal
Procedure.
Spicer, 12 S.W .3d at 444.
3
W e acknowledge that Spicer characterizes the relevancy portion of the severance inquiry as a determination
whether “evidence of each offense is relevant to some material issue in the trial of all the other offenses.” Spicer, 12
S.W .3d at 445 (emphasis added) (citing Tenn. R. Evid. 404(b)(2)). However, Tennessee Rule of Evidence 404(b)(2)
does not contain this language. Moreover, because the broader adjudication at hand is one of mandatory severance,
which is governed by Tennessee Rule of Criminal Procedure 14(b)(1), the formula for “other” crimes’ admissibility in
(continued...)
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[B]ecause the trial court’s decision of whether to consolidate offenses is determined
from the evidence presented at the [pretrial] hearing, appellate courts should usually
only look to that evidence, along with the trial court’s findings of fact and
conclusions of law, to determine whether the trial court abused its discretion by
improperly joining the offenses.
Id. at 438. We emphasize that the standard promulgated by our supreme court is a combination of
the provisions of Tennessee Rule of Criminal Procedure 14(b)(1) and Tennessee Rule of Evidence
404(b). See Tenn. R. Evid. 404(b) (limiting the use of character evidence against an accused to
situations wherein the evidence is relevant to “other purposes” than to show that the defendant had
a propensity to commit the offense on trial).
In the present case, the issue of consolidation/severance arose when, on the morning
of the first scheduled day of trial, the State moved orally to consolidate the charges contained in four
separate indictments. Although the defendant opposed the motion and thereby availed himself the
opportunity to assert his right to a severance, neither party introduced any evidence in the hearing.
The State argued that in all four robberies, the two perpetrators stole cigarettes from trucks delivering
merchandise to retail businesses; the perpetrators used dark-colored automobiles; the perpetrators
worked in tandem, one moving cases of cigarettes to the truck door while the other loaded them into
the car; and in some cases, the cars used bore no license plates. The defendant argued that “the same
scheme” was not evident because the vehicles used in the robberies were different and because
similar robberies had been committed in Memphis both before July 11, 2003, while the defendant
was incarcerated on a prior conviction, and after the defendant was apprehended and confined on the
present charges.
From our reading of the trial court’s findings, we conclude that the court merely
determined that the indictments may be joined for trial. Although the trial judge mentioned the
3
(...continued)
Rule 14(b)(1) is controlling. It provides that “the evidence of one would be admissible in the trial of the others.” Tenn.
R. Crim. P. 14(b)(1) (emphasis added). It is likely that the “each” and “all” language of Spicer resulted from the specific
two-indictment consolidation issue presented in that case, but when the proposed consolidation is of at least three or more
charges, the “one” and “others” language of Rule of Criminal Procedure 14(b)(1) seems to be not only controlling but
more apt as well. State v. Burchfield, 664 S.W .2d 284, 286 (Tenn. 1984) (commenting that the “primary inquiry into
whether a severance should have been granted under Rule 14 is whether the evidence of one crime would be admissible
in the trial of the other if the two counts of the indictment had been severed”). For instance, assume four “signature”
offenses are charged, and the defendant is captured – and hence identified – in only charge number four. The defendant
is not identified as the culprit in charges one through three, except on the basis of his committing crime four, which bears
the same signature as the other three. See State v. Moore, 6 S.W .3d 235, 239 (1999) (“Typically, offenses that are parts
of a common scheme or plan are offered by the State to establish the identity of a perpetrator. Indeed, identity is usually
the only relevant issue supporting admission of other offenses when the theory of the common scheme or plan is
grounded upon a signature crime.”) (citations omitted). It makes no sense to say that joinder of the charges in a single
trial is precluded because evidence of the crime in charge one, for example, would not be admissible in a trial on charge
four. In this sense, there can be no rule of reciprocity, though Spicer may suggest otherwise.
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presence of a “common scheme or plan,” immediately after that comment he stated, “While, perhaps,
a mandatory joinder is not in order, certainly a permissive joinder would be appropriate in this
instance. And as a matter of judicial economy under Rule 8(b), these matters should be joined.” See
Tenn. R. Crim. P. 8(b) (explaining the bases for permissive joinder of offenses).4 We infer from the
court’s comments that it merely determined that the offenses alleged were of a same or similar
character. See Tenn. R. Crim. P. 8(b)(2) (providing that offenses of a same or similar character may
be consolidated).5
C. Adjudication.
1. Form and Timing of State’s Motion to Consolidate
The defendant complains that the State’s motion to consolidate was not submitted to
the trial court in written form. We recognize, however, that a “motion – except one made during a
trial or hearing – shall be in writing unless the court permits it to be made orally.” Tenn. R. Crim.
P. 47(b) (emphasis added). The record shows that, in the present case, the trial court permitted the
State to move orally to consolidate. Thus, no error attends the oral form of the motion.
Next, the defendant complains that the State’s morning-of-trial motion to consolidate
was untimely. We agree that, in general, a rule or statutory provision that a specified action must
be taken “prior to trial” means that it must be taken prior to the day of trial. State v. Stephenson, 752
S.W.2d 80, 83 (Tenn. 1988); State v. Aucoin, 756 S.W.2d 705, 709 (Tenn. Crim. App. 1988).
Despite that Spicer directs the trial court to treat the State’s Rule 8 motion to consolidate, when
challenged by the defendant, as a Rule 14 motion to sever, and despite that our supreme court and
Rule 14(a)(1)(A) generally direct that the defendant’s motion to sever be made prior to trial, we find
no provision that requires the State to file a motion to consolidate prior to trial. Neither Tennessee
Rule of Criminal Procedure 8 nor Rule 13 mention filing the motion to consolidate before trial.
Thus, we cannot conclude that the initial motion to consolidate was untimely. Even if it were, we
see no prejudice to the defendant and would deem any such error harmless. See Tenn. R. Crim. P.
52(a). When the State moved the consolidation of the indictments, the defendant made a cogent
argument that advanced his Rule 14 claim that the counts should remain severed.6 The defendant
did not claim to be surprised, did not articulate a reason why the consolidation caused a strategic or
tactical problem, and did not move for a continuance. Indeed, the actions of the parties suggest that
4
The trial court conditioned the consolidation of offenses upon the State electing to sever the defendants for
trial. The State accepted the offer, and the defendant proceeded to trial alone on all four indictments.
5
After making his findings as outlined above, the trial judge commented that he thought that, in the case of
separate trials, evidence of some of the additional offenses would be admissible in a trial of a single charge, but the court
apparently mentioned the issue of admissibility merely in support of its view that consolidation promoted judicial
economy.
6
He also objected to the severance of the co-defendant, arguing that if two defendants stand trial at once,
eyewitnesses might have difficulty in distinguishing between them for purposes of in-court identification.
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the defendant was aware that the State would seek consolidation. At any rate, we believe that any
error in permitting a morning-of-trial motion to consolidate was harmless.
2. Abuse of Discretion
As we detailed above, the applicable abuse-of-discretion standard of review asks
whether the trial court (1) applied an incorrect legal standard or (2) reached an illogical conclusion
resulting in injustice to the complaining party. See Spicer, 12 S.W.3d at 442. We hold that the trial
court applied an incorrect legal standard but that the error was harmless. We also conclude in the
alternative, that the trial court’s legal determinations, if inapt, did not result in injustice to the
defendant.
a. Application of Legal Standard
In determining that the four indictments were permissibly joined for trial, the trial
court applied an incorrect standard. As shown above, pursuant to Spicer, the court should have
analyzed the issue as one of the defendant’s Rule 14(b)(1) right to a severance; thus, it should have
determined whether severance was precluded by the existence of a common scheme or plan and by
the admissibility of evidence of one of the offenses in the trials of the others.
The error, however, is subject to harmless error analysis. See Tenn. R. Crim. P. 52(a);
Spicer, 12 S.W.3d at 447. “In most severance cases, ‘the line between harmless and prejudicial error
is in direct proportion to the degree . . . by which proof exceeds the standard required to convict. .
. .’” Spicer, 12 S.W.3d at 447-48 (quoting Delk v. State, 590 S.W.2d 435, 442 (Tenn. 1979)).
Although we recognize in the present case that the consolidation could have had a “piling on” effect,
we discern that the independent evidence of the defendant’s guilt of each and every charge was very
strong and that a jury would have convicted him of the crimes based upon cogent identification
testimony.
State v. Shirley, 6 S.W.3d 243 (Tenn. 1999), affords a revealing contrast to the present
case. In Shirley, our high court adjudicated reversible error resulting from the trial court’s failure
to sever robbery offenses. The prosecution’s witnesses’ evinced credibility issues, and the evidence
of the four offenses on trial together tended to bolster the weaker witnesses. Id. at 251. In the
present case, we discern no real credibility issues among the State’s witnesses. The State presented
eyewitnesses who positively identified the defendant in a pretrial photographic array and identified
him again at trial. None of these witnesses was seriously impeached.
Based upon this review of the record and the law, we hold that the trial court’s
application of the wrong legal standard was harmless error.
b. The Propriety of the Trial Court’s Legal Conclusions (Assuming that the Trial
Court Did Intend to Apply the Standards of Rule 14 and Spicer).
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As noted above, we recognize that, in ruling on the motion to consolidate/sever, the
trial court used the phrase “common scheme or plan” and that, although the phrase may be an
alternative basis for permissive consolidation of charges, see Tenn. R. Crim. P. 8(b)(1), it could also
suggest that the trial court was speaking of the conjoined requirements for severance, see id. 14(b)(1)
(providing for mandatory joinder unless the offenses are (1) part of a common scheme or plan and
(2) evidence of one would be admissible in the trial of the others). The defendant challenges the
“common scheme or plan” portion of this formula. Thus, in the event our supreme court rules on
further review that we err in determining that the trial court incorrectly applied the standard of
Tennessee Rule of Criminal Procedure 8(b)(2), we now review its conclusions on the hypothesis that
it did adjudicate a Rule 14(b)(1) severance issue.
The challenged requirement for precluding a severance is that the charged offenses
be parts of a common scheme or plan. See Tenn. R. Crim. P. 14(b)(1). The phrase “common
scheme or plan” describes three types of compilations of otherwise discrete offenses: (1) offenses
that feature such a distinctive design that they constitute “signature” crimes; (2) offenses that are
integral to “a larger, continuing plan or conspiracy”; and (3) a set of offenses that form part of the
same criminal transaction. Shirley, 6 S.W.3d at 248. In the present case, as in Shirley, see id., the
four offenses qualify if at all as a common scheme or plan, only if they are signature crimes. As is
typical of signature crimes, the State sought to use the compilation of offenses as one means of
establishing identity in the first three offenses (in which the defendant was not caught “red-handed”).
See, e.g., Shirley, 6 S.W.3d at 248; State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996).
However, before multiple offenses may be said to evince a distinctive
design, the “modus operandi employed must be so unique and
distinctive as to be like a signature.” Although the offenses need not
be identical in every respect, the methods used in committing the
offenses must have “such unusual particularities that reasonable men
can conclude that it would not likely be employed by different
persons.” Only when the method used to commit the crimes is so
unique as to be like a signature can the inference of identity properly
arise.
Shirley, 6 S.W.3d at 248 (citations and footnote omitted). The court should not “merely enumerate
[the offenses’] similarities and differences” and should not classify offenses “as signature crimes if
they lack a distinct modus operandi.” Id.
In the present case, the State in the consolidation/severance hearing touted as
similarities in the offenses: (1) the complicity of two men; (2) the selection of delivery trucks as
targets; (3) the selection of cases of cigarettes as the objects of the robberies; (4) the means whereby
one robber entered the cargo area of a truck and moved cases of cigarettes to the door for the other
man to load into a car; and (5) the use of a dark-colored car with no license plates. This listing
strikes us, however, more as an enumeration of similarities than as a “distinctive design.” See id.
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In reacting to the State’s argument in the pretrial hearing, the trial court debunked the
notion that similar “get-away” vehicles were used, specifically finding that a different car was used
in each of the four robberies. Additionally, neither the use of a confederate to commit a robbery nor
the selection of a delivery truck as a vulnerable target for stealing merchandise is hardly a novel idea.
Also, from the record of the argument in the pretrial hearing, we learn that thefts of cigarettes from
delivery trucks had been common in the Memphis area in the three months preceding July 11, 2003,
a time when the defendant was incarcerated, and we infer that cigarettes were a commodity easily
exchanged for cash in the “black market”. Finally, we are unpersuaded that the method of one
robber’s entering the cargo area of a truck and moving cases to the door for his partner to load into
a car is somehow distinctive. Frankly, we can think of no other common-sense way for two men to
unload a truck by hand. In sum, as in Shirley, the various robberies at issue did not bear such
distinctive features that they can be branded signature crimes. If the trial court held that a common
scheme or plan existed, it erred.
Having reached this juncture, however, the defendant encounters the same barrier to
reversal that blocked his way on the issue of applying an incorrect legal standard. The error is
harmless in our view. In brief, the strong, affirmative testimony of credible eyewitnesses belies the
claim that an erroneous joinder is the culprit that produced a conviction on each charge. Cf. Shirley,
6 S.W.3d at 250-51 (holding error not harmless; evidence of guilt was “not overwhelming” in that
“most of the eye-witnesses could not positively identify” the defendant).
II. Exclusion of Former Co-defendant’s Pretrial Statement
The defendant claims that the trial court erred in excluding from his case-in-chief the
statement that Finley gave to the Memphis police on August 28, 2003.
After the State rested its case-in-chief, the defendant conducted a jury-out voir dire
examination of Finley and elicited his refusal to waive his right against self-incrimination to testify
in the defendant’s trial. Then, the defendant moved for leave to present Finley’s August 28, 2003
statement as evidence to the jury. The defendant offered the statement as a hearsay-rule exception
for statements against penal interest.
Finley gave the statement in the wake of being apprehended with the defendant the
previous day during the pair’s attempt to flee the robbery at Yung’s. The stolen cigarettes were left
in the back seat of the car when the two men abandoned it on foot in the sight and presence of the
officers. In his pretrial statement, Finley acknowledged participating with the defendant in the
robbery at Yung’s, and he acknowledged that the Oldsmobile Delta ‘88 belonged to his “lady
friend,” Victor Frayser, who also owned the blue Chevrolet Lumina. Finley stated that he and the
defendant were driving around looking for employment when they saw cigarettes being unloaded
from the truck at Yung’s. Finley recounted that the defendant left the car and got onto the truck.
Finley removed the license plate from the Oldsmobile and loaded into the car the cases of cigarettes
that the defendant brought to the truck door. In response to the question whether he saw the
defendant “with a gun or anything that looked like a gun,” Finley responded, “No.”
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In his motion for leave to admit Finley’s statement, the defendant argued that the
statement had a bearing on “whether there were any weapons used.” The trial court denied the
motion, holding that Finley’s disavowal of weapon possession was self-serving and not contrary to
his penal interest. The judge pointed out that Finley and the defendant had been caught “red-handed”
and that Finley’s admission of involvement in the August 27 robbery was merely gratuitous. The
judge said, “[I]t seems to me that the way this is all being worded is an attempt to minimize the
culpability. . . . It’s a statement intended to avoid the consequences of criminal conduct.”
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c).
Generally, “[h]earsay is not admissible.” Id. 802. Certain exceptions to the rule of exclusion of
hearsay, however, are recognized. See id. 803 (enumerating exceptions that apply regardless of the
declarant’s availability at trial), 804 (enumerating exceptions that are applicable when the declarant
is unavailable). One exception that applies when the declarant is unavailable allows a statement
which, when made out of court, “so tended to subject the declarant to civil or criminal liability . . .
, that a reasonable person in the declarant’s position would not have made the statement unless
believing it to be true.” Id. 804(b)(3). For purposes of Rule 804, “unavailability” includes an
exemption “by ruling of the court on the grounds of privilege from testifying concerning the subject
matter of the declarant’s statement.” Tenn. R. Evid. 804(a)(1).
The statement proffered by the defendant – Finley’s negative answer to the question
whether he had seen the defendant with a gun – was to be presented by the defendant for the truth
of the matter asserted and was, therefore, hearsay. Thus, assuming that the defendant substantially
demonstrated Finley’s unavailability by eliciting his invocation of his right against self-
incrimination, the issue before us is whether Finley’s statement about not seeing the defendant with
a gun so far tended to subject Finley to criminal liability that he would not have made the statement
unless he believed it to be true. We agree with the trial court that the statement was inadmissible
hearsay.
The context of the statement was that Finley and the defendant had been caught
immediately after the robbery at Yung’s Food Market with the stolen merchandise in their car.
Being at least complicit in a claim of robbery supported by a witness’ account of one of the robbers’
using a gun, Finley faced prosecution for aggravated robbery. See T.C.A. § 39-13-402 (2003)
(establishing as a Class B felony robbery accomplished “with a deadly weapon or by display of an
article used or fashioned to lead the victim to believe it to be a deadly weapon” (aggravated
robbery)); id. § 39-11-401 (2003) (establishing a person’s criminal responsibility for an offense
committed by another through the person’s aiding or attempting to aid, with the requisite intent, the
other person to commit the offense). Thus, in the context of being caught outright and with a claim
of aggravated robbery afoot, it served Finley to claim that the offense was merely a theft or, at most,
a simple robbery. Viewed in that light, Finley’s comment about not seeing the defendant with a gun
was self-serving and bore no indicia of reliability.
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This court has before viewed in “context” statements offered as Rule 804(b)(3)
exceptions. In State v. Shinny L. Leverett, No. 02C01-9509-CR-00254 (Tenn. Crim. App., Jackson,
July 3, 1996), a murder case, we reviewed a defendant’s claim that he should have been allowed to
introduce a statement made by a non-testifying co-defendant to her psychologist. In the statement,
the co-defendant indicated that she killed the victim in self-defense. Id., slip op. at 2. “The trial
judge refused to allow the psychologist to testify as to Ms. Miles’[s] statement” and “held that the
statement was hearsay and did not fall within a recognized exception.” Id., slip op. at 3. This court
stated, “In addressing the 804(b)(3) exception, the trial judge found that when taken in context with
all of Ms. Miles’[s] prior statements, the statement was self-serving and supported a self-defense
posture.” Id. (emphasis added). The trial court had, therefore, “concluded that the statement was
not against [the declarant’s] penal interest,” and this court agreed that “the statement does not fall
within . . . the proffered exception[].” Id.
Similarly considering the context of Finley’s pretrial statement, we hold that the
proffered statement was hearsay and did not meet the requirements of Tennessee Rule of Evidence
804(b)(3). As such, it was properly excluded.
III. Severance of Defendants
In his next issue, the defendant challenges the trial court’s order of severance of the
trial of co-defendant Robert Finley from that of the defendant. On the morning of the first day of
trial, the trial judge informed the parties, in response to the State’s motion to consolidate the offenses
charged in four indictments, that the court would grant the consolidation motion only if the State
acceded to a severance of the defendants. The State opted to sever the trial of Finley from that of
the defendant, and over the objection of the defendant, the trial court severed the trial of Finley and
postponed it. The court proceeded with the trial of the defendant on the four, consolidated
indictments.
On appeal, the defendant claims that the State’s “motion” to sever defendants was
untimely and that it prohibited the defendant from using the “joint defense strategy previously
discussed with the co-defendant.” The State counters that the trial court did not abuse its discretion
in ordering the severance of Finley’s trial from that of the defendant. We agree with the State.
A. Standard of Review
The decision to sever criminal co-defendants is wholly within the discretion of the
trial court, State v. Maddox, 957 S.W.2d 547, 556 (Tenn. Crim. App. 1997); State v. Little, 854
S.W.2d 643, 648 (Tenn. Crim. App. 1992), and it may not be set aside absent “clear abuse,” State
v. Howell, 34 S.W.3d 484, 491 (Tenn. Crim. App. 2000).
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B. Form and Timing of Motion.
In our view, the State essentially moved to sever the trial of Finley from the
defendant’s trial. The pretrial hearing began with the State’s motion to consolidate charges. Because
Finley was a co-defendant on only some of the charges, the trial judge expressed his reluctance to
consolidate the charges unless Finley’s trial were severed from that of the defendant. The State then
opted for the severance of co-defendants.
Obviously, the “motion” to sever the trials of the co-defendants was made orally on
the morning of the first day of trial. As was the case with the State’s motion to consolidate the
charges, the defendant claims that the motion should have been made in writing prior to the first day
of trial. See Tenn. R. Crim. P. 14(c)(2)(B) (prescribing the standard for adjudicating before trial a
prosecution motion to sever the trials of co-defendants). However, as was also the case with the
previously addressed motion, the trial court authorized the oral motion by allowing it. See Tenn. R.
Crim. P. 47(b).
The claim of a late motion to sever co-defendants addresses the same issue at stake
in other late-arising changes in a trial format – that of surprise. See, e.g., State v. Allen, 976 S.W.2d
661, 667 (Tenn. Crim. App. 1997) (commenting that the requirement of Tennessee Code Annotated
section § 40-17-106 that prosecution list names of trial witnesses on the indictment is “to prevent
surprise to the defendant at trial and to permit the defendant to prepare his or her defense”).
However, “surprise” in this sense means more than “unexpected”; a defendant cannot claim surprise
unless, through notice and more preparation time, he could have reacted to the new event by
changing his course of action at trial. A surprise is typically remedied, not by barring a new
development that is otherwise a matter of proper advocacy, but by granting a continuance if the
defendant asks for one. See, e.g., State v. Terry Dean Sneed, No. 03C01-9702-CR-00076, slip op.
at 14 (Tenn. Crim. App., Knoxville, Nov. 5, 1998) (in adjudicating a claim that the trial court
erroneously allowed a late amendment to an indictment, applying general rule that “[w]hen a
defendant experiences actual surprise at trial resulting from an amendment to an indictment, a
defendant should move for a continuance so as to allow time to prepare a defense to the new
charges”). Even though the State’s motion in the present case should have been made “before trial,”
the defendant articulated no claim that his trial preparation could have been ameliorated had the
severance of Finley’s trial happened earlier. He merely argued that the State’s eyewitnesses might
be more hesitant in identifying the defendant in court if two defendants were present. Moreover, he
failed to seek a continuance. Thus, any error in the trial court’s adjudicating the State’s day-of-trial
motion to sever the trial of Finley was harmless. See Tenn. R. Crim. P. 52(a) (prohibiting reversal
based on error unless the error “affirmatively appear[s] to have affected the result of the trial on the
merits”).
C. Merits of Severance; Applicable Law
The pretrial severance of co-defendants is governed by Tennessee Rule of Criminal
Procedure 14(c)(2): “On motion of the State . . . , the court shall grant a severance of defendants if:
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(A) before trial, the court finds a severance necessary . . . to promote a fair determination of the guilt
or innocence of one or more defendants . . . .” Tenn. R. Crim. P. 14(c)(2)(A).
In the present case, the defendant claims that the severance of Finley’s trial precluded
a fair determination of the defendant’s guilt or innocence because, in a joint trial, Finley’s pretrial
“statement would have been introduced by the Prosecution,” whereas following the severance, the
trial court excluded from evidence Finley’s pretrial statement.
Before adjudicating this issue, we point out that the defendant did not rely upon this
“new” claim of prejudice when he objected to the pretrial severance motion, although he did assert
the new ground in his argument on his motion for new trial. Normally, a party may not use on appeal
a different basis for objecting to a trial-court action from the one he cited when the objection was
made. See Tenn. R. App. P. 36(a) (disavowing rule support for granting relief to a party “who failed
to take whatever action was reasonably available to prevent or nullify the harmful effect of an
error”). Our supreme court has said,
In this jurisdiction, a party is bound by the ground asserted when
making an objection. The party cannot assert a new or different
theory to support the objection in the motion for a new trial or in the
appellate court . . . .
When, as here, a party abandons the ground asserted when the
objection was made and asserts completely different grounds in the
motion for a new trial and in this Court, the party waives the issue.
State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App. 1994). Of course, in Adkisson, the action
challenged on appeal was the admission of evidence. To challenge such a ruling on appeal, the
appellant is required by rule not only to enter a contemporaneous objection, but also to state the
“specific ground of objection if the specific ground was not apparent from the context.” See Tenn.
R. Evid. 103(a)(1). In the present case, the defendant challenges the trial court’s severing the trials
of co-defendants upon motion of the State; no rule specifically requiring an “objection” applies to
this action. Moreover, the purpose of above-quoted portion of Tennessee Rule of Appellate
Procedure 36(a) is arguably satisfied when the aggrieved party presents his new ground to the trial
court in the motion for new trial, as did the defendant in the present case. These considerations
influence us to conclude that the defendant may raise his new ground for opposing the severance on
appeal, despite that he did not present it to the trial court at the time the severance action was being
considered. On the other hand, as we have explained in a preceding issue in this opinion, appellate
consideration of a trial court’s action in severing offenses is confined to the matters presented to the
trial court in the pretrial severance hearing. See Spicer, 12 S.W.3d at 445. This knowledge
influences us to ask whether the same rule should apply to pretrial motions to sever defendants.
We, however, merely identify these issues, perhaps for future adjudication. The
bottom line in the present case is that, even if we do review the defendant’s claim on its merits and
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even if we agreed that on appeal the defendant has articulated a basis for denying the severance, the
severance of Finley’s trial dwelled well within the ambit of the trial court’s discretion, and no abuse
of discretion is indicated, especially when the issues of fairness to co-defendant Finley himself are
factored. Pursuant to Rule of Criminal Procedure 14(c)(2)(A), the trial court, which initially
presided over a joint criminal proceeding against the defendant and Finley, was required to sever the
co-defendants’ trials if it found the severance was “appropriate to promote a fair determination of
guilt or innocence of one or more defendants.” Tenn. R. Crim. P. 14(c)(2)(A) (emphasis added).
Because Finley was not charged in all of the four indictments, the trial court determined that, given
consolidated indictments, fairness could be afforded Finley only if his trial was severed from that
of the defendant. We cannot say that the decision exceeded the trial court’s discretion.
Furthermore, we point out that Finley’s pretrial statement, the admission of which is
the core of the defendant’s present claim to a joint trial, was not as exculpatory as the defendant
seems to believe. In his statement, Finley essentially stated only that he did not see the defendant
with a gun or anything resembling a gun during the August 27 offense. To put a fine point on it, this
statement does not avow that the defendant had no gun. Even had he gained admission of the
statement through a joint trial or otherwise, we cannot imagine the statement leading to a different
result at trial. In other words, any error in denying a severance because it may have resulted in
limitations on the defendant’s presentation of evidence was harmless. See Tenn. R. Crim. P. 52(a).
IV. Sufficiency of the Evidence
In his next issue, the defendant claims that the evidence supporting the convictions
is legally insufficient. He posits two specific complaints: (1) The credibility of the various
eyewitnesses was suspect due to prevailing lighting conditions, and (2) the State failed to proved that
a deadly weapon was used in the aggravated robbery cases.
When an accused challenges the sufficiency of the evidence, an appellate court
inspects the evidentiary landscape, including the direct and circumstantial contours, from the vantage
point most agreeable to the prosecution. The reviewing court then decides whether the evidence and
the inferences that flow therefrom permit any rational fact finder to conclude beyond a reasonable
doubt that the defendant is guilty of the charged crime. See Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67
(Tenn. 1985). In determining sufficiency of the proof, the appellate court does not replay or reweigh
the evidence. See State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Witness
credibility, the weight and value of the evidence, and factual disputes are entrusted to the finder of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Simply stated, the reviewing court will
not substitute its judgment for that of the trier of fact. Instead, the court extends to the State of
Tennessee the strongest legitimate view of the evidence contained in the record as well as all
reasonable and legitimate inferences that may be drawn from the evidence. Cabbage, 571 S.W.2d
at 835.
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“Robbery is the intentional or knowing theft of property from the person of another
by violence or putting the person in fear.” T.C.A. § 39-13-401(a) (2003). For purposes of the
indictments for aggravated robbery, that offense is committed by one who accomplishes robbery
“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.” Id. § 39-13-402(a)(1).
We easily dispose of the defendant’s general challenge to the witnesses’ efficacy in
identifying the defendant as the offender. On each charge, the State’s testimonial evidence, if
believed by the jury, established that the defendant was the perpetrator. It was the jury’s prerogative
to believe these witnesses and to reject the conflicting testimony of the defendant. We may not
disturb those determinations of the trier of fact.
We turn now to the defendant’s claims that the State failed to prove the elements of
each charged offense. To review, the defendant was convicted of the robberies of Mr. Crain (July
11, 2003) and Mr. Shears (August 5, 2003) and was convicted of the aggravated robberies of Mr.
Yarbrough (August 13, 2003) and Mr. Mitchell (August 27, 2003).
A. Herbert Crain (robbery, July 11, 2003)
Herbert Crain testified that the defendant entered his truck trailer and told him to
leave. Mr. Crain left the trailer, and the defendant started moving cases of cigarettes. When asked
whether the defendant did or said anything else, Mr. Crain replied, “No, not really . . . . He was not
really speaking that much at all.” Mr. Crain testified, “I was going to attempt to close him up inside
the trailer, but he caught me.” When asked whether he was afraid, Mr. Crain testified, “I really
wasn’t afraid. I was more concerned . . . that if something happened to me, my kids would be
without a father.” The ensuing testimony is as follows:
Q [W]hat happened then?
A He caught me trying to sneak my way over to the door, and he
told me that if I tried that again, he would shoot me.
Q And so he told you that he would shoot you?
A Yes.
Q And at this point, were you afraid?
A No, not really, I was still just mad that it was happening.
Q Now, did you ever see a weapon?
A No, I did not. He did not actually brandish it at all.
Q Did you think that he had a weapon?
A I knew there was a strong possibility.
Q And why did you think there was a possibility?
A Because our company was robbed on a regular basis, and
there had been several of the other drivers [who] had brought
guns out into the situation.
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Q But in this particular instance, did you see anything that
indic[ated] that he had a weapon other than what he told you?
A Other than him just reaching for his pocket that was all I saw.
Q Okay. But you did see him reach for his pocket?
A Well, putting his hand low. I wouldn’t have known if it was
actually at his pocket or in his belt line, it was in that general
vicinity that he had reached.
This testimony is devoid of any proof that the defendant either obtained property from
Mr. Crain by violence or by putting him in fear. If a victim is put in fear by the action of a
defendant, at some point the victim’s testimony should establish that he was afraid. Mr. Crain
disavowed being in fear. Also, he articulated no action on the part of the defendant that may fairly
be characterized as violent. As such, the evidence was insufficient to establish the July 11, 2003
robbery of Mr. Crain. The conviction of that robbery must be reduced to theft. See State v. Bowles,
52 S.W.3d 69, 79 (Tenn. 2001) (“It is uncontested that theft is a lesser-included offense of
robbery.”). Because the State did not establish the value of the goods taken in the July 11, 2003
theft, we have no basis for grading the offense above the minimum grade for goods valued at $500
or less, a Class A misdemeanor.
B. Gabriel Shears (robbery, August 5, 2003)
Mr. Shears testified that, at a BP store on August 5, 2003, he was loading a dolly
when he saw the defendant and another man drive up. The defendant entered the Forrest City
Grocery truck trailer and began to remove cases of cigarettes. The truck driver, Keith Richardson,
was inside the trailer, and Mr. Shears heard the defendant tell Mr. Richardson to “get back” and saw
the defendant “tussling” with Mr. Richardson. Mr. Shears saw the defendant grab at his pocket, and
Mr. Shears testified that he was afraid at that point because he thought the defendant had a gun.
In the light most favorable to the State, this testimony establishes both that the
defendant put Mr. Shears in fear and that, through his commands and tussling with Mr. Richardson,
the defendant robbed either Mr. Shears or Mr. Richardson by violence.7
C. Willis Yarbrough (aggravated robbery, August 13, 2003)
Mr. Yarbrough testified that, while he was working in the cargo area of his H.T.
Hackney truck at a Walgreen’s on August 13, 2003, the defendant entered the truck and proceeded
to remove cigarettes from the truck. Mr. Yarbrough testified that he saw the defendant with a gun
and that he was afraid.
7
The State sought and obtained two separate convictions of the robbery of each of the various victims via a
charge in each case that alleged “by violence” and a charge that alleged “by putting the [victim] in fear.” The resulting
dual convictions were merged. In the case of the August 5 BP robbery, not only were separate charges as to the mode
of the robbery submitted to the jury, but the State also presented separate charges naming Mr. Shears as the victim and
charges naming Mr. Richardson as the victim. These resulting convictions were also merged.
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This evidence supports the defendant’s resulting conviction of aggravated robbery.
The robbery, committed via putting the victim in fear, was aggravated by the defendant’s possession
of a deadly weapon.
D. DeAngelo Mitchell (aggravated robbery, August 27, 2003)
Mr. Mitchell testified that, while he was working inside his Forrrect City Grocery
trailer at Yung’s Food Market, the defendant entered the trailer with a gun and told Mr. Mitchell not
to move. Mr. Mitchell testified that he was afraid.
As in the case of Mr. Yarbrough, this evidence supports the conviction of aggravated
robbery.
In conclusion, the evidence supports the convictions of aggravated robbery and one
conviction of robbery. The conviction of the July 11, 2003 robbery must be reduced to Class A
misdemeanor theft.
V. The Defendant’s Position in the Courtroom
In his next issue, the defendant claims that the trial court erred in refusing to allow
him to sit through the trial at the counsel table, next to his attorney. He had been assigned a seat
immediately behind his attorney, who sat at the counsel table. Prior to trial, he moved the court to
allow him to sit at the table with counsel, but the trial judge denied the motion, saying, “It’s been my
practice not to allow that. . . . That’s the way we do it.”
On appeal the defendant neither articulated any prejudice from the trial court’s action
nor cited any authority for his claim. Because no authority was cited to support his argument, the
issue has been waived on appeal. See Tenn. R. Ct. Crim. App. 10(b).
VI. Omission of a Jury Instruction Relative to Identification Testimony
In this issue, the defendant claims that the trial court failed to adequately instruct the
jury about the perils of identification testimony, as mandated by State v. Dyle, 899 S.W.2d 607(Tenn. 1995).
In Dyle, our supreme court nodded to the possible shortcomings of identification
testimony and promulgated the following instructions to be used when identification is an issue in
a criminal case:
One of the issues in this case is the identification of the defendant as
the person who committed the crime. The state has the burden of
proving identity beyond a reasonable doubt. Identification testimony
is an expression of belief or impression by the witness, and its value
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may depend upon your consideration of several factors. Some of the
factors which you may consider are:
(1) The witness’ capacity and opportunity to observe the offender.
This includes, among other things, the length of time available for
observation, the distance from which the witness observed, the
lighting, and whether the person who committed the crime was a prior
acquaintance of the witness;
(2) The degree of certainty expressed by the witness regarding the
identification and the circumstances under which it was made,
including whether it is the product of the witness’ own recollection;
(3) The occasions, if any, on which the witness failed to make an
identification of the defendant, or made an identification that was
inconsistent with the identification at trial; and
(4) The occasions, if any, on which the witness made an identification
that was consistent with the identification at trial, and the
circumstances surrounding such identifications.
Again, the state has the burden of proving every element of the crime
charged, and this burden specifically includes the identity of the
defendant as the person who committed the crime for which he or she
is on trial. If after considering the identification testimony in light of
all the proof you have a reasonable doubt that the defendant is the
person who committed the crime, you must find the defendant not
guilty.
Dyle, 809 S.W.2d at 612.
The defendant in the present case argues that the jury instructions on identification
that appear in the transcript of the trial proceedings are at variance with the copy of the written
instructions that appear in a compilation prepared by the trial court clerk. However, we have
reviewed the two sets of instructions that appear in the record and find that they are substantially
identical. In the written instructions appended to the record, the last paragraph of the instruction
says, per Dyle, “Again, the state has the burden of proving every element of the crime charged, and
this burden specifically includes the identity of the defendant . . . .” (Emphasis added.) The same
sentence in the transcript omits the highlighted phrase and reads, “Again, the state has the burden
of proving every element of the crime charged including the identity of the defendant . . . .” Thus,
under either version, the trial court imparted the prescribed Dyle instruction, verbatim or
substantially verbatim, to the jury. We discern no error.
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VII. Sentencing
In his last issue, the defendant claims that the trial court erred in ordering the
consecutive service of the four sentences. The trial court imposed a Range III, ten-year sentence on
each of the merger-surviving convictions of robbery and a Range II, 17-year sentence on each of the
merger-surviving convictions of aggravated robbery. The court ordered consecutive alignment of
all sentences, thereby creating an effective sentence of 54 years.
When there is a challenge to the manner of service of a sentence, it is generally the
duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. T.C.A. § 40-35-401(d) (2003). This presumption,
however, 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. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). The burden of showing that the sentence is improper is upon the appellant, and
in the event the record fails to demonstrate the required consideration by the trial court, review of
the sentence is purely de novo. Id. If appellate review reflects the trial court properly considered
all relevant factors and its findings of fact are adequately supported by the record, this court must
affirm the sentence, “even if we would have preferred a different result.” State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
Tennessee Code Annotated section 40-35-115 enumerates the bases upon which a
trial court may order consecutive sentences. The portions of that section that are germane to the
present case are as follows:
(a) If a defendant is convicted of more than one (1) criminal
offense, the court shall order sentences to run consecutively or
concurrently as provided by the criteria in this section.
(b) The court may order sentences to run consecutively if the
court finds by a preponderance of the evidence that:
(1) The defendant is a professional criminal who has
knowingly devoted such 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;
....
(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;
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....
(c) The finding concerning the imposition of consecutive or
concurrent sentences is appealable by either party.
(d) Sentences shall be ordered to run concurrently, if the
criteria noted in subsection (b) are not met, unless consecutive
sentences are specifically required by statute or the Tennessee Rules
of Criminal Procedure.
T.C.A. § 40-35-115 (2003). “The sentence imposed should be no greater than that deserved for the
offense,” id. § 40-35-103(2), and “should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed,” id. § 40-35-115(4).
In the present case, the trial court determined that the defendant was a professional
criminal, see id.§ 40-35-115(b)(1), that his record of criminal activity was extensive, see id. § 40-35-
115(b)(2), and that he was a dangerous offender, see id. § 40-35-115(b)(4).
The trial court’s determination that the defendant was a professional criminal is
certainly suggested, although not forcefully supported, in the record, and the determination that the
defendant was a dangerous offender is even less supported. We, however, need not belabor the
aptness of these findings because “[o]nly one factor need be proven to support . . . consecutive
sentenc[ing].” State v. Kenneth Paul Dykas, No. M2000-01665-CCA-R3-CD, slip op. at 16 (Tenn.
Crim. App., Nashville, Mar. 5, 2002). We hold that the defendant’s record of criminal convictions
is so extensive that the trial court was warranted in ordering consecutive sentencing on that basis
alone. Prior to the offenses in the present case, the defendant had garnered six convictions of
misdemeanor theft, a conviction of felony theft, two convictions of evading arrest, one conviction
of resisting arrest, four convictions of drivers’ license offenses, two misdemeanor and two felony
convictions of drug-related offenses, a felony forgery conviction, a conviction of malicious mischief,
two convictions of failure to appear, one weapons-possession conviction, and two convictions of
disorderly conduct. This record supports the trial court’s consecutive alignment of offenses.
Finally, we impose a sentence of 11 months, 29 days for the theft conviction that
replaces one of the robbery convictions via this opinion.
Conclusion
In conclusion, we reverse the robbery conviction that was based upon the July 11,
2003 incident involving Mr. Crain, and in its place, we impose a Class A misdemeanor conviction
of theft and impose a sentence of 11 months and 29 days to run consecutively to the remaining
sentences in this case. We affirm all other convictions and sentences.
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___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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