State of Tennessee v. Joshua Johnson ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
November 17, 2015 Session
STATE OF TENNESSEE v. JOSHUA JOHNSON
Appeal from the Criminal Court for Knox County
No. 102466B Steven Wayne Sword, Judge
No. E2015-00545-CCA-R3-CD – Filed January 25, 2016
____________________________
Appellant, Joshua Johnson, stands convicted of facilitation of attempted first degree
murder, employing a firearm during the attempted commission of a dangerous felony
with a prior dangerous felony conviction, unlawful possession of a weapon, and
aggravated assault. He received an effective sentence of twenty-six years. On appeal,
appellant argues that the evidence was insufficient to support his convictions, that he
should not have been convicted and sentenced under Tennessee Code Annotated section
39-17-1324 when he was not convicted of any of the listed dangerous felonies, and that
the trial court should have granted his request for an absent material witness jury
instruction. Following our careful review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Case Remanded
ROGER A. PAGE, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and ROBERT H. MONTGOMERY, JR., JJ., joined.
Leslie M. Jeffress, Knoxville, Tennessee, for the Appellant, Joshua Johnson.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Charme P. Allen, District Attorney General; and Ta Kisha Monette Fitzgerald, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
This case concerns the August 10, 2013 shooting of Nathan Kelso. The victim
survived the shooting, and appellant and codefendant Bendale Romero were charged with
attempted first degree murder (two counts representing alternate theories), employing a
firearm during the commission of a dangerous felony, and aggravated assault (two counts
representing alternate theories). Appellant (but not his codefendant) was also charged
with employing a firearm during the commission of a dangerous felony with a prior
conviction for a dangerous felony and with the unlawful possession of a weapon.
Appellant and codefendant Romero were tried jointly in September 2014.
I. Facts
The State‘s first witness was Michael Alan Mays. Mr. Mays testified that he was
the records manager for the Knox County Emergency Communications District (9-1-1).
Mr. Mays said that the first 9-1-1 call regarding the shooting of the victim occurred at
1:05 a.m. on August 10, 2013. The State played five 9-1-1 calls for the jury, which we
have summarized as follows:
(1) A woman reported hearing seven gunshots in Lonsdale Homes.
(2) A woman reported hearing gunshots for fifteen minutes in a parking lot in
Lonsdale Homes. She saw a black car and said that she did not want to
look out her door.
(3) A woman reported hearing a lot of gunshots and a man begging for his life.
She believed it happened in parking lot C.
(4) A man reported hearing ten to fifteen gunshots and believed someone was
shot. He reported that the shooting occurred at Pascall and Minnesota in
Lonsdale. He saw people running.
(5) A man reported that someone had been shot behind Minnesota Avenue. He
reported that the shooter was a short, light-skinned black man who drove a
maroon vehicle.
The State‘s next witness was Henry Wilson. Mr. Wilson explained that he lived in
Lonsdale Homes and showed, on an aerial map, where his home was in relation to
parking lot C. Mr. Wilson testified that on August 10, 2013, just as he was lying down to
go to sleep, he heard two gunshots followed by someone ―hollering, moaning and
groaning.‖ He further testified that the person said, ―[D]on‘t do this to me,‖ and ―[Y]ou
know me.‖ Then, he heard two more shots. Mr. Wilson said that he looked outside and
saw someone drive away, but without his glasses on, he was unable to recognize the
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person. Mr. Wilson went outside to the victim, who was near the trash cans in parking lot
C, and saw that the victim was wounded in his legs and head. Mr. Wilson testified that
the other bystanders told him who had shot the victim. When police officers arrived, Mr.
Wilson told them that ―Little B‖ was the shooter and told them where ―Little B‖ was
located. Mr. Wilson identified ―Little B‖ as Bendale Romero.
Michael L. Tillery testified that on August 10, 2013, he was in bed asleep when he
heard arguing outside his home in Lonsdale Homes. He looked out the window but could
not see well without his glasses. When he turned to get his glasses, he heard gunshots.
He saw someone drive away. Mr. Tillery said that he called 9-1-1 and also spoke with
police officers who arrived thereafter.
On cross-examination, Mr. Tillery said that he heard the victim say, ‗―[M]an,
we‘re better people than that[.]‘‖ Mr. Tillery denied telling police that the shots were
fired from the car and stated that he did not remember telling police that ―Little B‖ was
the person who said, ―‗[W]e‘re better people than that.‘‖ He said that the shots were
spaced apart—first two and then a third. Mr. Tillery also stated that the car that drove
away was red and that the victim had been arguing with someone in the red car.
Knoxville Police Department Officer Jacob Wilson testified that he patrolled the
area in and around Lonsdale Homes. He was dispatched to Lonsdale Homes on August
10, 2013, after residents had reported shots being fired. When Officer Wilson arrived in
lot C, he heard someone yelling for help on the other side of the parking lot. He ran to
the victim and saw that the victim had been shot in his temple. Officer Wilson said that
the victim was grabbing his pants leg and calling for someone to help him. Officer
Wilson testified that despite his knowing the victim personally, he could not recognize
the victim due to the victim‘s injuries. Officer Wilson had a conversation with the victim
before the victim went to the hospital. He also talked with bystanders. As a result, he
went to the apartment where he believed codefendant Romero lived. Codefendant
Romero‘s mother allowed Officer Wilson into the apartment and showed him to
Romero‘s bedroom. Romero‘s window was open and wet grass was scattered on his bed.
Officer Wilson learned that the shooting suspect was supposedly driving a maroon two-
door car, and a car matching that description was found in a yard nearby, ―pulled in . . .
like it was hidden.‖
On cross-examination, Officer Wilson testified that Michael Tillery told him that
he heard two shots, went to his window or door, and observed a ―vehicle move closer to
[the victim].‖ Mr. Tillery also told Officer Wilson ―that he heard [the victim] plead for
his life, or . . . , please don‘t shoot me again, and they said, man, we‘re better people than
that[,] and then shot again.‖ Officer Wilson said that Mr. Tillery attributed the shooter‘s
statement to ―Little B.‖
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The victim, Nathan Kelso, testified that he was from Knoxville and grew up in the
Lonsdale area. When asked whether he recognized anyone at the defense table, he said
that the person who shot him was the person wearing a yellow button-up shirt and that he
also recognized the person wearing black pants and a white button-up shirt as being from
Lonsdale. The person with the yellow shirt was identified for the record as codefendant
Romero, and the person wearing the white shirt was identified for the record as appellant.
The victim testified that on August 10, 2013, he purchased marijuana and went to
Lonsdale with a friend whose name he could not remember to trade the marijuana and a
small amount of cash for crack cocaine. When he arrived at Lonsdale, he saw that ―the
boy Josh had a gun out on two other fellows.‖ The victim said that after that situation
was resolved, he approached ―him,‖ presumably ―Josh,‖ and asked ―if he would trade off
on something that I had.‖ The victim testified, ―[H]e turned around and said, f*** that,
pow, shot me in my leg for no reason.‖ The victim said that he asked him what he was
doing and ―what the f*** is wrong with you,‖ but when the victim tried ―to swing‖ his
arm, the man ―shot [him] in [his] arm.‖ The victim then stated
After he shot me in my arm, I went over to the other side to the
ground. When I got to the ground, I never seen the other little guy all the
time I was out there. And I heard Josh myself, come on, man, shoot him in
the head, shoot him in the head. I remember him saying, shoot me in the
head. He put the gun to my forehead, it didn‘t go off. So he pushed me
back to the ground, fixed the gun, and I put my hand up when it went to my
(sic) gun, he shot me in my head.
The victim identified the man in the yellow shirt (codefendant Romero) as the
person who shot him in the head. The victim said that he had known ―Josh‖ since Josh
was a baby and that he had known of the man in the yellow shirt since he was young, as
well. The victim showed the places where he had been shot, and he explained that the
bullet that hit his head first went through his hand and was still lodged behind his eye. He
said that the men got into a Camero driven by the man in the yellow shirt. The victim
explained that he was unable to remember names.
Regarding the effect that the shooting had on his body, the victim testified as
follows:
I can‘t remember certain foods . . . the name of them. I‘ve gotta look
at it again and then I can remember what it is. Still, names – you know,
people I know if I see – when I see them – I see people I know who they
are. I just can‘t remember names. There‘s just things I can‘t do like I used
to do – working status and stuff like that . . . . I can‘t hear in my left ear[.] .
. . My eyesight, I‘ve just gotta . . . keep it dripped to where it stays watered
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down, you know, wet. I can‘t chew on my left side, my food. . . . I have a
ringing in my ear. . . . My ringing lasts forever. . . .
The victim identified a photographic lineup and recalled that the lineup was given
to him when he was in the hospital. It was dated August 17, 2013, and he had circled the
photograph of the man who shot him in the head. He again identified the man in the
courtroom wearing a yellow shirt as the man who shot him in the head. The victim
identified a second photographic lineup that was shown to him in the hospital. He said
that the person he circled was the man who shot him in the leg and arm. The second
photographic lineup was dated August 18, 2013. The victim testified that the man in the
courtroom wearing glasses was the person who shot him in the leg and arm. The State
identified that person for the record as appellant.
On cross-examination, the victim testified that he had $60 in cash and $50 worth
of marijuana when he approached appellant. He agreed that he knew appellant had a
firearm. The victim denied that he was trying to steal appellant‘s drugs. He affirmed that
the person who walked to Lonsdale with him would have been present for at least the first
gunshot. The victim agreed that appellant could have killed him and stated, ―He talked
someone into killing me because I (inaudible).‖ On re-direct examination, the victim
confirmed that he told the police on August 17 and August 18 that there were two
shooters and that he testified at the preliminary hearing that there were two shooters.
Lisa Knight, the director of the handgun program with the Tennessee Department
of Safety and Homeland Security, testified that codefendant Romero did not have a
handgun carrying permit and that it would be illegal for a person with a felony drug
conviction to possess a handgun.
The State presented evidence from medical personnel at the University of
Tennessee Medical Center regarding the victim‘s medical treatment and records.
Thereafter, the State rested its case-in-chief.
Codefendant Romero testified in his own defense. He stated that on the night of
the shooting, the victim approached him in parking lot C about ―sell[ing] him some.‖
Codefendant Romero said that he did not sell him anything but continued on his way to
throw out his trash in the parking lot dumpster. When he returned from the dumpster, the
victim ―tried to strong arm [him] and go in [his] pockets.‖ Codefendant Romero stated
that he and the victim struggled, and Romero‘s gun fell off of his hip. He said, ―[S]o
when I finally shook him off of me and got free from him, I dive, and when I got to the
gun, I just was scared, and I pointed it at him and started squeezing.‖ Codefendant
Romero then ran to his car while shooting back at the victim, got into his car, and drove
behind his apartment. He said that he threw away the gun in a creek at a park.
Codefendant Romero said that he had a previous encounter with the victim one to two
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weeks before the shooting during which the victim tried to ―bully[]‖ him for money. He
stated that he was not trying to kill the victim.
On cross-examination by appellant‘s attorney, codefendant Romero testified that
appellant was not present during the shooting. Codefendant Romero then rested his case-
in-chief, and appellant rested his case without presenting evidence.
Subsequently, the jury convicted codefendant Romero as charged and convicted
appellant of two counts of the lesser-included offense of facilitation of attempted first
degree murder; two counts of employing of a firearm during the attempted commission of
a dangerous felony with a prior dangerous felony conviction1; one count of unlawful
possession of a weapon; and two counts of aggravated assault. The trial court merged the
alternate theory convictions and sentenced appellant to sixteen years as a Range II,
multiple offender for the facilitation of attempted first degree murder conviction; to the
statutory minimum ten-year term at 100% for the employment of a firearm conviction; to
eight years as a Range II, multiple offender for the unlawful possession of a weapon
conviction; and to eight years as a Range II, multiple offender for the aggravated assault
conviction. The trial court ordered that appellant‘s employment of a firearm conviction
be served consecutively to appellant‘s sentence for facilitation of attempted first degree
murder. The trial court ordered appellant‘s other sentences to be aligned concurrently.
Therefore, appellant‘s aggregate sentence length was twenty-six years. Appellant now
appeals the judgments of the trial court.
II. Analysis
A. Sufficiency of the Evidence (Appellant‘s Issues 1-3)
Appellant contests the sufficiency of the evidence supporting his convictions.2
First, he contends that his convictions should not rest on the credibility of the victim, who
suffered mental deficits as a result of the shooting. Second, he maintains that the trial
court should have dismissed his employing a firearm during the commission of a
dangerous felony conviction because he was not convicted of a dangerous felony listed in
Tennessee Code Annotated section 39-17-1324(i). To the extent that the third issue listed
in his brief—whether the trial court should have sentenced him pursuant to Tennessee
Code Annotated section 39-17-1324—amounts to a challenge of the sufficiency of the
evidence supporting this conviction, we will address it in this section.
1
The weapon charges were bifurcated from the other charges because the jury also had to
determine that appellant had a prior dangerous felony.
2
Appellant‘s second issue was whether the trial court should have granted appellant‘s motion for
judgment of acquittal, an issue which is analyzed under the same standard as his first issue, sufficiency of
the evidence supporting his convictions.
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The standard for appellate review of a claim challenging the sufficiency of the
State‘s evidence is ―whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.‖ Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing
Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v.
Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient
evidence, appellant must demonstrate that no reasonable trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at
319. This standard of review is identical whether the conviction is predicated on direct or
circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d 370,
379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).
On appellate review, ―‗we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.‘‖ Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual
disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
This court presumes that the jury has afforded the State all reasonable inferences from the
evidence and resolved all conflicts in the testimony in favor of the State; as such, we will
not substitute our own inferences drawn from the evidence for those drawn by the jury,
nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;
Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Because a jury conviction removes the presumption of innocence that appellant enjoyed
at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts
from the State to the convicted appellant, who must demonstrate to this court that the
evidence is insufficient to support the jury‘s findings. Davis, 354 S.W.3d at 729 (citing
State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).
Appellant was convicted of facilitation of attempted first degree premeditated
murder, employing a firearm during the attempted commission of a dangerous felony
with a prior dangerous felony conviction, unlawful possession of a firearm, and
aggravated assault. In order to support appellant‘s conviction for facilitation of attempted
first degree murder, the State had to prove beyond a reasonable doubt that ―the accused
(a) knew another person was going to commit a specified felony and (b) knowingly
furnished substantial assistance in the commission of the felony although the accused did
not possess the requisite intent to be guilty of the felony.‖ State v. Parker, 932 S.W.2d
945, 950-51 (Tenn. Crim. App. 1996); see also Tenn. Code Ann. 39-11-403(a). Appellant
was convicted of facilitating attempted first degree murder under the theory of
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premeditation, for which the State would have had to show that the main actor ―[a]cted
with intent to cause a result that is an element of the offense, and believe[d] the conduct
[would] cause the result without further conduct on the person‘s part‖ and that ―the intent
to kill [was] formed prior to the act itself.‖ See Tenn. Code Ann. § 39-13-202(d).
To support appellant‘s other convictions, the State had to show that appellant
employed a firearm during the commission of a dangerous felony and that he had a prior
conviction for a dangerous felony; that appellant possessed a firearm after having been
convicted previously of a felony drug offense; and that appellant either knowingly caused
serious bodily injury to the victim or that he caused bodily injury to the victim while
using a deadly weapon. See Tenn. Code Ann. §§ 39-13-101, -102, 39-17-1307(b)(1)(B),
-1324(b)(2).
Viewed in the light most favorable to the State, the proof at trial showed that
appellant shot the victim in the arm and the leg and encouraged codefendant Romero to
shoot the victim in the head, which codefendant Romero then did. Appellant stipulated
during the trial that he had a prior felony drug conviction. Appellant argues that because
the victim was the only witness to place appellant at the scene and due to the victim‘s
mental deficits that occurred as a result of the shooting, the evidence was insufficient to
support his convictions. We disagree. The victim‘s testimony was clear about what
happened to him and who was responsible. He identified appellant soon after the
shooting and again in court. Moreover, the jury heard the evidence and was able to gauge
the victim‘s credibility.
These facts are sufficient to sustain appellant‘s convictions for facilitation of
attempted first degree premeditated murder, unlawful possession of a firearm, and
aggravated assault. However, further analysis is required for appellant‘s employing a
firearm during the commission of a dangerous felony conviction. He argues that because
he was not convicted of a dangerous felony listed in section 39-17-1324(i), he cannot
then be convicted of employing a firearm during the commission of a dangerous felony.
The jury in this case specifically found that appellant was guilty of employing a
firearm during the commission of a dangerous felony and that the specific dangerous
felony was attempted first degree murder, despite having convicted him of the lesser-
included offense of facilitation of attempted first degree murder; thus, the verdicts are
seemingly inconsistent. Nonetheless, Tennessee courts have long held that inconsistent
verdicts are allowed:
Consistency in verdicts for multiple count indictments is unnecessary as
each count is a separate indictment. . . . An acquittal on one count cannot be
considered res judicata to another count even though both counts stem from
the same criminal transaction. This Court will not upset a seemingly
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inconsistent verdict by speculating as to the jury‘s reasoning if we are
satisfied that the evidence establishes guilt of the offense upon which the
conviction was returned.
Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn. 1973). More recently, the Tennessee
Supreme Court stated ―that ‗[t]he validity accorded to [inconsistent] verdicts recognizes
the sanctity of the jury‘s deliberations and the strong policy against probing into its logic
or reasoning, which would open the door to interminable speculation.‘‖ State v. Davis,
466 S.W.3d 49, 77 (Tenn. 2015) (quoting United States v. Zane, 495 F.2d 683, 690 (2nd
Cir. 1974)). The facts cited in support of appellant‘s other convictions equally support
his conviction for this offense. Therefore, we affirm appellant‘s convictions.
B. Sentencing
The crux of appellant‘s issue regarding his employing a firearm during the
commission of a dangerous felony conviction was whether the evidence was legally
sufficient to support his conviction, but because he raised the issue as a sentencing
consideration, we will analyze whether the trial court properly sentenced appellant for
this conviction. Appellant contends that the trial court erred by sentencing him under
Tennessee Code Annotated section 39-17-1324.
To begin, Tennessee Code Annotated section 39-17-1324(h)(2) sets the mandatory
minimum for appellant‘s conviction at ten years. Thus, the trial court properly sentenced
appellant to a sentence length of ten years. Tennessee Code Annotated section 40-35-
501(j) states that there shall be no release eligibility for a conviction under section 39-17-
1324(b). Thus, the trial court‘s sentencing is proper in that regard.3 Concerning the
sentence alignment, section 39-17-1324(e) mandates that a sentence imposed for a
violation of subsection 1324(b) be served consecutively ―to any other sentence the person
is serving at the time of the offense or is sentenced to serve for conviction of the
underlying dangerous felony.‖ The trial court therefore properly aligned appellant‘s
sentence consecutively to a sentence for a prior case under this provision. The trial court
also aligned appellant‘s sentence consecutively to his sentence for facilitation of
attempted first degree murder but did so under the provisions of Tennessee Code
Annotated section 40-35-115(b).
Prior to 2013, on appellate review of sentence alignment issues, courts employed
the abuse of discretion standard of review. See State v. Hastings, 25 S.W.3d 178, 181
(Tenn. Crim. App. 1999). Our supreme court has since extended the standard of review
3
However, the trial court should have indicated the 100% release eligibility by marking the box
next to ―§ 39-17-1324(a), (b) 100%‖ rather than ―40-35-501(i) 100%.‖ We therefore remand the case for
correction of this clerical error.
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enunciated in State v. Bise, abuse of discretion with a presumption of reasonableness, to
consecutive sentencing determinations. State v. Pollard, 432 S.W.3d 851, 860 (Tenn.
2013); Bise, 380 S.W.3d 682, 707 (Tenn. 2012) (modifying standard of review of within-
range sentences to abuse of discretion with a presumption of reasonableness); see also
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying abuse of discretion with
a presumption of reasonableness to review of alternative sentencing determinations by
the trial court). Thus, the presumption of reasonableness gives ―deference to the trial
court‘s exercise of its discretionary authority to impose consecutive sentences if it has
provided reasons on the record establishing at least one of the seven grounds listed in
Tennessee Code Annotated section 40-35-115(b) . . . .‖ Pollard, 432 S.W.3d at 861.
The procedure used by the trial courts in deciding sentence alignment is governed
by Tennessee Code Annotated section 40-35-115, which lists the factors that are relevant
to a trial court‘s sentencing decision. Imposition of consecutive sentences must be ―justly
deserved in relation to the seriousness of the offense.‖ Tenn. Code Ann. § 40-35-102(1).
The length of the resulting consecutive sentence must be ―no greater than that deserved
for the offense committed.‖ Id. § 40-35-103(2). The court may order consecutive
sentences if it finds by a preponderance of the evidence that one or more of the following
seven statutory criteria exists:
(1) The defendant is a professional criminal who has knowingly devoted
the defendant‘s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
(3) The defendant is a dangerous mentally abnormal person so declared
by a competent psychiatrist who concludes as a result of an
investigation prior to sentencing that the defendant‘s criminal
conduct has been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to consequences;
(4) The defendant is a dangerous offender whose behavior indicates
little or no regard for human life and no hesitation about committing
a crime in which the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the
aggravating circumstances arising from the relationship between the
defendant and victim or victims, the time span of defendant‘s
undetected sexual activity, the nature and scope of the sexual acts
and the extent of the residual, physical and mental damage to the
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victim or victims;
(6) The defendant is sentenced for an offense committed while on
probation; or
(7) The defendant is sentenced for criminal contempt.
The Pollard court reiterated that ―[a]ny one of these grounds is a sufficient basis
for the imposition of consecutive sentences.‖ Pollard, 432 S.W.3d at 862 (citing State v.
Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). ―So long as a trial court properly
articulates reasons for ordering consecutive sentences, thereby providing a basis for
meaningful appellate review, the sentences will be presumed reasonable and, absent an
abuse of discretion, upheld on appeal.‖ Id.
The trial court in this case made the following findings with regard to consecutive
sentencing:
There‘s also some discretionary consecutive sentencing the Court
should consider within this new case that we‘re sentencing him for today.
And the State has asked that the Court consider that the defendant is a
professional criminal who has knowingly devoted such life to criminal acts
as a major source of livelihood. There is some evidence in this case
concerning drug transactions and the history of that, but I don‘t think
there‘s sufficient evidence to find that the defendant has devoted his life to
criminal acts as a major source of livelihood. And so, I don‘t think that that
mandates consecutive sentencing or can be relied upon in discretionary
consecutive sentencing.
The defendant is an offender whose record of criminal activity is
extensive. The Court does find that that is true in this case. Mr. Johnson
has a significant juvenile history including the conviction for felony
murder, and I think that the Court can consider that prior conviction, both
to increase his range here to range two, as well as in the determination on
whether or not there should be consecutive sentencing in this case. Mr.
Johnson is an individual who participated in the murder of a person in the
past and except for the grace of God and modern medical science, this isn‘t
a first degree murder in this case. And so, I think -- I think, looking back at
Mr. Johnson‘s history, that it certainly is reasonable for the Court to find
that the defendant is – does have a criminal history that is extensive, and
that does support consecutive sentencing in this case.
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The State also argues that 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. And the
Court finds that the circumstances surround the commission of this
particular offense are aggravated. This wasn‘t just your normal attempted
first degree murder. This was a situation where Mr. Johnson shot Mr.
Kelso for no reason. He wasn‘t threatened by Mr. Kelso, he just pulled out
a gun and shot him multiple times and then encouraged his co-defendant to
put the [coup de grâce] into his head and while this person is sitting there
begging for his life. So I find that those are aggravating circumstances.
I think confinement for an extended period of time is also necessary
to protect society from Mr. Johnson‘s further criminal conduct. Juvenile
Court attempted all they could to rehabilitate Mr. Johnson[;] he didn‘t take
advantage of that. He has, as I stated, participated in the commission of a
homicide of a person in the part, and almost was successful again in doing
that. Mr. Johnson has shown himself to be a danger to the community. And
when TDOC released him to the community after completion of the boot
camp program, they obviously put this community in danger as evidenced
by the lifelong injuries Mr. Kelso suffered at the hands of Mr. Johnson and
his co-defendant. And so, restraining Mr. Johnson as long as possible is
necessary to protect this community.
The trial court also determined that the aggregate sentence length was reasonably
related to the offense for which appellant was convicted. In doing so, the trial court
determined that running all sentences consecutively would be excessive and determined
that only the employing a firearm during the commission of a dangerous felony sentence
would be served consecutively. From the trial court‘s findings and our review of the
record, we conclude that the trial court‘s findings are supported by the record and that it
did not abuse its discretion in sentencing appellant.
C. Absent Material Witness Jury Instruction
Appellant has waived his final issue—that the trial court should have granted his
request for an absent material witness jury instruction—for failure to comply with
Tennessee Rule of Appellate Procedure 27 regarding the content of briefs. See Tenn. Ct.
Crim. App. Rule 10(b). Appellant has made a lengthy argument with no citations to
supporting authorities and has also failed to include the standard of review as required by
Rule 27. He is, therefore, without relief as to this issue.
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CONCLUSION
Based on the argument of the parties, the record, and the applicable law, we affirm
the judgments of the trial court. We remand for correction of the clerical error noted
supra, footnote 3.
_________________________________
ROGER A. PAGE, JUDGE
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