State of Tennessee v. Lamonez Deshaun Thaxton ( 2016 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs September 13, 2016
    STATE OF TENNESSEE v. LAMONEZ DESHAUN THAXTON
    Appeal from the Criminal Court for Davidson County
    No. 2014-B-1662 J. Randall Wyatt, Jr., Judge
    No. M2016-00216-CCA-R3-CD – Filed November 2, 2016
    The defendant, Lamonez Deshaun Thaxton, appeals his Davidson County Criminal Court
    jury convictions of reckless endangerment and attempted especially aggravated robbery,
    claiming that the trial court erred by denying the defendant‟s motion to exclude evidence,
    that the evidence was insufficient to sustain his convictions, and that the sentence
    imposed was excessive. Discerning no error, we affirm.
    Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed
    JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.
    HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.
    David A. Collins, Nashville, Tennessee, for the appellant, Lamonez Deshaun Thaxton.
    Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
    General; Glenn R. Funk, District Attorney General; and Jude Santana and Jeffrey
    Jackson, Assistant District Attorneys General, for the appellee, State of Tennessee.
    OPINION
    The Davidson County Grand Jury charged the defendant with one count
    each of attempted first degree murder, especially aggravated robbery, employing a
    firearm during the commission of a dangerous felony, and attempted aggravated robbery,
    arising out of the robbery and attempted murder of Arterries Chatman and the attempted
    robbery of Marshaqueze Clark. The trial court conducted a jury trial in August 2015.
    The State‟s proof at trial showed that, shortly after midnight on December
    24, 2013, Mr. Chatman drove Ms. Clark and her four-year-old daughter to Ms. Clark‟s
    residence on Nocturne Drive. When the trio arrived at the residence and got out of the
    vehicle, the defendant appeared out of some nearby bushes brandishing a handgun and
    told Mr. Chatman to “„come on with it.‟” Mr. Chatman took that demand to mean that
    the defendant intended to rob him, and Mr. Chatman responded that he “„don‟t got
    nothing.‟” Mr. Chatman recalled that the defendant was pointing the gun at him and that
    he felt fearful. The defendant instructed Ms. Clark to “„just get you and your daughter
    and you go on[,] you ain‟t got nothing to do with this.‟” After Ms. Clark entered her
    residence, Mr. Chatman continued to argue with the defendant, and the defendant shot
    Mr. Chatman once in the left leg below the knee. At that point, Mr. Chatman fell to the
    ground, and the defendant stole his iPhone and $90 in cash. Mr. Chatman testified that
    nothing was covering the defendant‟s face and that he “could see him clearly.” When
    asked at trial to describe the level of pain the shooting caused, Mr. Chatman stated, “They
    say 1 to 10. I‟m going to rate it to 1 to 20.”
    Ms. Clark testified that she heard the gunshot as she was running away, and
    she stated that she called 9-1-1 from her mobile telephone as she was entering her
    apartment. Once she was inside, Ms. Clark looked through her apartment window and
    saw Mr. Chatman lying on the ground while the defendant searched through Mr.
    Chatman‟s pockets.
    Metropolitan Nashville Police Department (“Metro”) Officer Bradley
    Hambrick responded to the call of a shooting at Nocturne Drive, and when he arrived at
    the scene, he discovered Mr. Chatman seated on the apartment building‟s exterior steps.
    Officer Hambrick observed that Mr. Chatman “was in some pain” and noticed that
    “[t]here was a lot of blood.” It was “very apparent” to Officer Hambrick that Mr.
    Chatman had been shot. Mr. Chatman described the shooter to Officer Hambrick as “an
    African American male in his early 20s” who was approximately six feet tall, “160
    pounds and that he was wearing blue jeans, a red shirt, with a gray hoodie” with
    “dreadlocks” and “a medium skin complexion.” Officer Hambrick recalled that Ms.
    Clark‟s description of the shooter matched that of Mr. Chatman‟s. Ms. Clark admitted at
    trial that the defendant was related to her brother and that, although she knew the
    defendant when they were both younger, she did not immediately recognize him on
    December 24 because he had aged and “look[ed] different.” Ms. Clark also conceded
    that others had contacted her following the shooting and informed her that the defendant
    was the perpetrator.
    Mr. Chatman was transported to the hospital, where he stayed overnight for
    treatment of his gunshot wound. He testified that the injury had caused nerve damage
    and that he had been undergoing physical therapy since the shooting.
    Metro Detective Tim Codling testified that another Metro officer and Ms.
    Clark had both provided the defendant‟s name to him as a possible suspect in the
    shooting and robbery. On January 29, 2014, both Mr. Chatman and Ms. Clark viewed
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    separate photographic lineups prepared by Detective Codling, and both positively
    identified the defendant as the shooter. The photographic lineups were introduced into
    evidence, and the photograph of the defendant showed an African-American male with
    dreadlocks.
    The parties stipulated that Metro officers “came into contact” with the
    defendant on April 5, 2014; that “a 9mm semi-automatic Ruger” firearm “was recovered
    in close proximity to the defendant”; that the defendant “had a cut on his hand”; and “that
    there was blood on the gun.” Metro Officer Arthur Hipp testified that he took “DNA
    swabs” from the Ruger handgun and that the swabs were given to the Tennessee Bureau
    of Investigation (“TBI”) for testing.
    TBI Agent Chad Johnson testified as an expert in the field of forensic
    biology. Agent Johnson conducted deoxyribonucleic acid (“DNA”) testing on the swabs
    taken from the handgun and compared it to a buccal swab taken from the defendant,
    concluding that the blood matched the defendant‟s DNA. TBI Agent Jessica Hudson
    testified as an expert in the area of firearms and tool mark identification. Agent Hudson
    conducted testing on the firearm at issue and determined that a nine-millimeter cartridge
    casing recovered from the crime scene had been fired from that weapon.
    With this evidence, the State rested. Following the defendant‟s motion for
    judgments of acquittal and a Momon colloquy, the defendant elected not to testify and
    chose not to present any proof. After taking the defendant‟s motion under advisement,
    the trial court denied the motion as to the first three counts of the indictment but granted a
    judgment of acquittal on the count of the attempted aggravated robbery of Ms. Clark.
    Based on the evidence presented, the jury convicted the defendant of the
    lesser included offenses of reckless endangerment and attempted especially aggravated
    robbery, and the jury found the defendant not guilty of the charge of employing a firearm
    during the commission of a dangerous felony. Following a sentencing hearing, the trial
    court imposed a sentence of 11 months and 29 days‟ incarceration for the reckless
    endangerment conviction, to be served concurrently to a 10-year sentence as a standard
    offender for the conviction of attempted especially aggravated robbery. Following the
    denial of his timely motion for new trial, the defendant filed a timely notice of appeal.
    In this appeal, the defendant contends that the trial court erred by denying
    his motion to exclude evidence, that the evidence was insufficient to support his
    convictions, and that the sentence imposed was excessive. We will address each issue in
    turn.
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    I. Motion to Exclude
    The defendant first contends that the trial court erred by denying his pretrial
    motion to exclude evidence of the handgun at issue and of the crimes for which he was
    arrested in April 2014, to wit: resisting arrest, evading arrest, and possession of a weapon.
    The defendant argues that the admission of those charges would constitute inadmissible
    prior bad acts. We disagree.
    As an initial matter, we note that the defendant failed to raise these issues in
    his motion for new trial. Accordingly, he has waived plenary review of this issue. Tenn.
    R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented for review shall be
    predicated upon error in the admission or exclusion of evidence, . . . unless the same was
    specifically stated in a motion for a new trial; otherwise such issues will be treated as
    waived.”); Tenn. R. App. P. 36(b) (“Nothing in this rule shall be construed as requiring
    relief be granted to a party responsible for an error or who failed to take whatever action
    was reasonably available to prevent or nullify the harmful effect of an error.”).
    In any event, evidence of the defendant‟s April 2014 charged offenses was
    never admitted at trial, and evidence that the defendant was found, on April 5, “in close
    proximity” to a Ruger handgun was admitted into evidence at trial via a stipulation.
    Because the defendant agreed to the admission of the handgun evidence at trial, he cannot
    now be heard to complain. See Tenn. R. App. P. 36(b).
    Moreover, even had the defendant not stipulated to the admission of the
    handgun evidence, possession or ownership of a firearm “standing alone, does not
    constitute a crime” and is not, therefore, prohibited by Tennessee Rule of Evidence
    404(b). See State v. Reid, 
    213 S.W.3d 792
    , 813-14 (Tenn. 2006). The handgun was
    probative of the defendant‟s identity as Mr. Chatman‟s shooter, as will be discussed more
    fully herein, and was thus clearly admissible. In consequence, the defendant is not
    entitled to relief on these issues.
    II. Sufficiency
    The defendant next contends that the evidence adduced at trial was
    insufficient to support his convictions. We disagree.
    We review the defendant‟s claim of insufficient evidence mindful that our
    standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979); State v. Winters, 
    137 S.W.3d 641
    , 654 (Tenn. Crim. App. 2003). This
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    standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
    or a combination of direct and circumstantial evidence. State v. Dorantes, 
    331 S.W.3d 370
    , 379 (Tenn. 2011).
    When examining the sufficiency of the evidence, this court should neither
    re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. 
    Id. Questions concerning
    the credibility of the witnesses, the weight and value of the
    evidence, as well as all factual issues raised by the evidence are resolved by the trier of
    fact. State v. Cabbage, 
    571 S.W.2d 832
    , 835 (Tenn. 1978). Significantly, this court must
    afford the State the strongest legitimate view of the evidence contained in the record as
    well as all reasonable and legitimate inferences which may be drawn from the evidence.
    
    Id. As relative
    to this case, misdemeanor reckless endangerment1 occurs when
    a person “recklessly engages in conduct that places or may place another person in
    imminent danger of death or serious bodily injury.” T.C.A. § 39-13-103(a), (b)(1).
    “Especially aggravated robbery is robbery as defined in § 39-13-401 . . . [a]ccomplished
    with a deadly weapon; and . . . [w]here the victim suffers serious bodily injury.” T.C.A.
    § 39-13-403(a). “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). “„Serious
    bodily injury‟ means bodily injury that involves . . . [a] substantial risk of death; [or]
    [e]xtreme physical pain.” T.C.A. § 39-11-106(a)(34).
    Criminal attempt is committed when a person, “acting with the kind of
    culpability otherwise required for the offense . . . [a]cts with intent to complete a course
    of action or cause a result that would constitute the offense, under the circumstances
    surrounding the conduct as the person believes them to be, and the conduct constitutes a
    substantial step toward the commission of the offense.” T.C.A. § 39-12-101(a)(3).
    Here, the proof adduced at trial established that the defendant accosted Mr.
    Chatman, pointed a handgun at him, and demanded that Mr. Chatman “„come on with
    it,‟” which Mr. Chatman took to mean that the defendant intended to rob him. When Mr.
    Chatman did not immediately comply with the defendant‟s request, the defendant shot
    1
    Although not raised by either party, we note that the trial court, in issuing its charge, erroneously
    instructed the jury on the offense of felony reckless endangerment, which includes the additional
    requirement that the offense be committed with a deadly weapon, rather than misdemeanor reckless
    endangerment. See T.C.A. § 39-13-103(a), (b)(1)-(2). Because, however, felony reckless endangerment
    is not a lesser included offense of attempted first degree murder, the jury‟s conviction of reckless
    endangerment necessarily had to be of the misdemeanor variety. See State v. Mario C. Gray, No. M2006-
    00398-CCA-R3-CD, slip op. at 10 (Tenn. Crim. App., Nashville, Dec. 17, 2007), perm. app. denied
    (Tenn. April 28, 2008). Accordingly, the defendant was properly sentenced for a conviction of
    misdemeanor reckless endangerment, and the trial court‟s error was harmless.
    -5-
    him once in the lower left leg and stole Mr. Chatman‟s cellular telephone and cash. Ms.
    Clark, who was watching from her apartment window, saw the defendant searching Mr.
    Chatman‟s pockets. Mr. Chatman testified that he was afraid during the incident and that
    the shooting caused extreme pain.
    Both Mr. Chatman and Ms. Clark positively identified the defendant in a
    photographic lineup one month after the incident. The parties stipulated that the
    defendant was found, four months later, “in close proximity” to a nine-millimeter
    handgun, that there was blood on the gun, and that the defendant had a cut on his hand.
    DNA testing revealed that the blood on the handgun matched that of the defendant, and
    ballistics testing concluded that a nine-millimeter cartridge casing recovered from the
    crime scene had been fired from that same handgun.
    The defendant primarily takes issue with Ms. Clark‟s identification of him,
    essentially arguing that her prior knowledge of the defendant and her acknowledgment
    that people told her of his involvement negated her credibility. The jury, however, as the
    trier of fact, resolves all questions of witness credibility, and it clearly found Ms. Clark‟s
    and Mr. Chatman‟s identification of the defendant to be credible. See 
    Cabbage, 571 S.W.2d at 835
    .
    Taking all of this evidence into consideration, we find that the defendant
    intended to deprive Mr. Chatman of his property by violence or placing him in fear and
    by causing serious bodily injury to Mr. Chatman and that the defendant recklessly
    engaged in conduct that placed Mr. Chatman in imminent danger of serious bodily injury.
    Thus, the evidence strongly supports the defendant‟s convictions of the lesser included
    offenses of reckless endangerment and attempted especially aggravated robbery.
    III. Sentencing
    Finally, the defendant contends that the 10-year sentence imposed by the
    trial court is excessive and that the trial court erred by denying his request for alternative
    sentencing. Again, we disagree.
    Our standard of review of the trial court‟s sentencing determinations in this
    case is whether the trial court abused its discretion, but we apply a “presumption of
    reasonableness to within range sentencing decisions that reflect a proper application of
    the purposes and principles of our Sentencing Act.” State v. Bise, 
    380 S.W.3d 682
    , 707
    (Tenn. 2012). The application of the purposes and principles of sentencing involves a
    consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
    the defendant . . . in determining the sentence alternative or length of a term to be
    imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
    -6-
    amendments to „place on the record, either orally or in writing, what enhancement or
    mitigating factors were considered, if any, as well as the reasons for the sentence, in order
    to ensure fair and consistent sentencing.‟” 
    Bise, 380 S.W.3d at 706
    n.41 (citing T.C.A. §
    40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is
    within the appropriate range and the record demonstrates that the sentence is otherwise in
    compliance with the purposes and principles listed by statute.” 
    Id. at 709.
    The imposition of a 10-year sentence in this case mandated the trial court‟s
    consideration of probation as a sentencing option. See T.C.A. § 40-35-303(a), (b).
    Traditionally, the defendant has born the burden of establishing his “suitability for full
    probation.” State v. Mounger, 
    7 S.W.3d 70
    , 78 (Tenn. Crim. App. 1999); see T.C.A. §
    40-35-303(b). Such a showing required the defendant to demonstrate that full probation
    would “„subserve the ends of justice and the best interest[s] of both the public and the
    defendant.‟” State v. Dykes, 
    803 S.W.2d 250
    , 259 (Tenn. Crim. App. 1990) (quoting
    Hooper v. State, 
    297 S.W.2d 78
    , 81 (Tenn. 1956)), overruled on other grounds by State v
    Hooper, 
    29 S.W.3d 1
    , 9-10 (Tenn. 2000). The supreme court expanded the holding in
    Bise to the trial court‟s decision regarding probation eligibility, ruling “that the abuse of
    discretion standard, accompanied by a presumption of reasonableness, applies to within-
    range sentences that reflect a decision based upon the purposes and principles of
    sentencing, including the questions related to probation or any other alternative
    sentence.” State v. Caudle, 
    388 S.W.3d 273
    , 278-79 (Tenn. 2012).
    When a trial court orders confinement and therefore rejects any form of
    alternative sentencing such as probation, split confinement, or periodic confinement, it
    must base the decision to confine the defendant upon the considerations set forth in Code
    section 40-35-103(1), which provides:
    (1) Sentences involving confinement should be based on the
    following considerations:
    (A) Confinement is necessary to protect society by
    restraining a defendant who has a long history of criminal
    conduct;
    (B) Confinement is necessary to avoid depreciating the
    seriousness of the offense or confinement is particularly
    suited to provide an effective deterrence to others likely to
    commit similar offenses; or
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    (C) Measures less restrictive than confinement have
    frequently or recently been applied unsuccessfully to the
    defendant; . . . .
    
    Id. In the
    instant case, the record reflects that the trial court found no
    mitigating factors to be applicable but based its decision on the applicability of two
    enhancement factors: the defendant‟s criminal history, see T.C.A. § 40-35-114(1), and
    the fact that he employed a firearm during the commission of the underlying offense, see
    T.C.A. § 40-35-114(9). With respect to the first factor, the trial court noted that, although
    the defendant had no prior felony convictions, he had several prior misdemeanor
    convictions, and the court found that the defendant‟s “consistent pattern of violating the
    law weigh[ed] in favor of enhancement.” With respect to the second factor, use of a
    deadly weapon is an essential element of the offense of attempted especially aggravated
    robbery and, therefore, should not have been used to enhance the defendant‟s sentence.
    See State v. Nix, 
    922 S.W.2d 894
    , 903 (Tenn. Crim. App. 1995). We need not tarry long
    over this error, however, because “a trial court‟s misapplication of an enhancement or
    mitigating factor does not invalidate the sentence imposed unless the trial court wholly
    departed from the 1989 Act, as amended in 2005.” 
    Bise, 380 S.W.3d at 706
    . Nothing in
    the record suggests that the trial court in this case “wholly departed from” the Sentencing
    Act. To the contrary, the record reflects that the trial court carefully considered all the
    relevant principles associated with sentencing, including the enhancement factors and the
    factors related to sentencing alignment, when imposing the sentence. Thus, we conclude
    that the record fully supports the length of sentence imposed in this case.
    With respect to the defendant‟s desire for “some form of alternative
    sentencing,” we discern that his argument on this issue is limited to a single sentence,
    utterly devoid of citation to authority or legal argument. “Issues which are not supported
    by argument, citation to authorities, or appropriate references to the record will be treated
    as waived in this court.” Tenn. R. Ct. Crim. P. 10(b); see also Tenn. R. App. P. 27(a)(7)
    (stating that the appellant‟s brief must contain an argument “setting forth . . . the
    contentions of the appellant with respect to the issues presented, and the reasons therefor .
    . . with citations to the authorities . . . relied on”). Because the defendant failed to comply
    with these rules, he has waived our consideration of this issue.
    In any event, the trial court made specific findings that incarceration was
    necessary due to the seriousness of the offense and to act as a deterrent to others; that
    confinement was warranted due to the defendant‟s criminal history; and that measures
    less restrictive than confinement had been unsucessful in the past. Thus, the trial court
    did not abuse its discretion by ordering a fully-incarcerative sentence.
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    IV. Conclusion
    Based upon the foregoing analysis, we affirm the judgments of the trial
    court.
    _________________________________
    JAMES CURWOOD WITT, JR., JUDGE
    -9-
    

Document Info

Docket Number: M2016-00216-CCA-R3-CD

Judges: Judge James Curwood Witt, Jr.

Filed Date: 11/2/2016

Precedential Status: Precedential

Modified Date: 11/2/2016