State of Tennessee v. Ricardo Antonio Demling ( 2018 )

01/30/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 17, 2018
STATE OF TENNESSEE v. RICARDO ANTONIO DEMLING
Appeal from the Circuit Court for Bedford County
No. 18229 Franklin L. Russell, Judge
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No. M2017-00140-CCA-R3-CD
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The Bedford County Grand Jury indicted the Defendant, Ricardo Antonio Demling, for
theft of property valued between $10,000 and $60,000. The jury found the Defendant
guilty as charged, and the trial court sentenced him to fifteen years as a Range III
persistent offender and ordered this sentence to be served consecutively to any unexpired
sentences. On appeal, the Defendant contends that the evidence was insufficient for a
rational juror to have found him guilty beyond a reasonable doubt of theft of property
between the value of $10,000 and $60,000. He also argues that his sentence was
excessive and asks this court to conduct a plain error review of “all objections” and “all
issues regarding venue and jurisdiction[.]” After a thorough review of the facts and
applicable case law, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and TIMOTHY L. EASTER, J., joined.
M. Wesley Hall, IV, Unionville, Tennessee, for the appellant, Ricardo Antonio Demling.
Herbert H. Slatery III, Attorney General and Reporter; Richard D. Douglas, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Mike Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural History
Jury Trial
Roger Dale Smith testified that he owned Smith Equipment in Bedford County.
Mr. Smith stated that, in 2009, Smith Equipment’s main business was selling lawn
mowers, lawn equipment, equipment parts, and utility vehicles. Smith Equipment was an
authorized dealer for Cub Cadet Utility Vehicles. On September 27, 2009, Mr. Smith
worked late at Smith Equipment and left around 10:30 p.m. The next morning, Mr.
Smith arrived at his business around 7:30 a.m. and noticed that a yellow utility vehicle
owned by Smith Equipment that had been parked in front of the business was missing.
Mr. Smith testified that Smith Equipment purchased the utility vehicle for $7,600 and
that the retail value of the utility vehicle was between $9,000 and $9,500. Mr. Smith and
his employees checked the inventory of the business and discovered that a second utility
vehicle had been stolen. Mr. Smith stated that the second utility vehicle “was parked on
the back side of the building where it was[] basically . . . waiting to be serviced.” Mr.
Smith explained that a customer, Nathan Walker, owned the second utility vehicle, a
green and black utility vehicle with accessories. Mr. Walker did not give anyone
permission to remove his utility vehicle from the Smith Equipment property. Mr. Smith
testified that Mr. Walker purchased his utility vehicle from Cub Cadet for $11,950 and
that the utility vehicle retailed for between $14,000 and $15,000. Mr. Smith explained
that the utility vehicles required keys to start and that Mr. Walker kept the key to his
vehicle but that the key to the other vehicle was inside Smith Equipment.
Mr. Smith testified that each utility vehicle weighed approximately two thousand
pounds and that two people could push a utility vehicle onto a trailer or that one person
could use a winch to move a utility vehicle onto a trailer. When shown a photograph of
the trailer on which the stolen utility vehicles were found, Mr. Smith noted that the trailer
did not have a winch. Mr. Smith stated that he did not give the Defendant or co-
defendant Marvin Summers permission to remove a utility vehicle from Smith
Equipment. On cross-examination, Mr. Smith testified that Smith Equipment filed a
claim for the stolen utility vehicles on its insurance policy and paid a $1,000 deductible.
The insurance company reimbursed Smith Equipment for the cost of replacing Mr.
Walker’s utility vehicle. The insurance company later contacted Mr. Smith to inform
him that law enforcement had found the stolen utility vehicles, which Mr. Smith turned
over to the insurance company.
Benjamin Burris testified that he had worked for the Bedford County Sheriff’s
Office (“BCSO”) for approximately ten years as a patrol officer. On September 28,
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2009, Deputy Burris responded to Smith Equipment to fill out an incident report. Mr.
Smith informed Deputy Burris that two utility vehicles had been stolen from Smith
Equipment. After Deputy Burris obtained the vehicle identification numbers (“VINs”) of
the stolen utility vehicles, he gave his report to the Criminal Investigation Division of the
BCSO. The VINs were later entered into the National Crime Information Center
(“NCIC”) database1 as stolen property.
Trooper Willie Allison testified that he had worked for the Tennessee Highway
Patrol (“THP”) for approximately ten years. On September 28, 2009, Trooper Allison
conducted a traffic stop in Clay County at 4:45 p.m. Trooper Allison stopped “a greyish
and pink Suburban” with a trailer carrying a green utility vehicle and a yellow utility
vehicle. He explained that he stopped the Suburban because the trailer lights were not
operating correctly. As Trooper Allison approached the Suburban, he noticed that the
vehicle had expired “dealer tags.” Trooper Allison checked to see if the dealer tag
belonged to the Suburban, and he found that Bridgett Allison owned the Suburban and
that the dealer tag originated from a dealership in Nashville. Trooper Allison testified
that co-defendant Summers was driving the vehicle and that the Defendant was in the
passenger seat. Trooper Allison separated the Defendant and co-defendant Summers and
asked them about the utility vehicles. Both individuals informed Trooper Allison that
they had been hired to transport the utility vehicles from Shelbyville to Kentucky;
however, they could not identify the individual who hired them to transport the items or
where in Kentucky they were supposed to transport the vehicles. Trooper Allison noted
that individuals who hauled vehicles for hire needed special tags on their vehicle and
trailer and that the Defendant and co-defendant Summers did not have the required tags
on their vehicle or their trailer. Trooper Allison also stated that the Defendant and co-
defendant Summers did not have keys for the utility vehicles, bills of sale, or other proof
of ownership.
On cross-examination, Trooper Allison explained that the Defendant and co-
defendant Summers did not tell him that they had been hired to transport the utility
vehicles to Celina after the owner’s vehicle broke down in Lebanon. Trooper Allison
checked the traffic log and did not find any log entry for a “motorist assist” for that day.
Trooper Allison testified that he arrested co-defendant Summers for driving on a revoked
license and transported him to the Clay County Jail. He was unsure of how the
Defendant was transported to the jail.
Deputy Brian Ferris testified that in 2009, Deputy Ferris was a detective for the
BCSO and was assigned to investigate the case against the Defendant and co-defendant
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Deputy Burris explained that NCIC is “a data base[] where stolen items go in, and if anything is
ever ran in the future, it’ll hit that it’s stolen from our jurisdiction.”
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Summers. He examined Deputy Burris’ report on the incident and then began “looking
in familiar places for [the stolen utility vehicles].” He explained that his normal
procedure was to contact investigators working in other counties to see if they were
investigating any similar offenses. On November 9, 2009, THP informed the BCSO that
the VINs of the stolen utility vehicles had been matched in a search on the NCIC
database. Deputy Farris contacted Trooper Allison. Deputy Farris confirmed that the
two utility vehicles found on the Defendant’s trailer in Clay County were the same
vehicles that were stolen from Smith Equipment in Bedford County.
Deputy Farris received photographs of the recovered utility vehicles from Troy
Human, a sergeant in the Criminal Investigations Division of the THP, on November 13,
2009. He stated that either Trooper Allison or Sergeant Human informed him that the
Defendant and co-defendant Summers had been stopped while transporting the stolen
utility vehicles. Deputy Farris contacted the Regional Organized Crime Information
Center to find the Defendant and co-defendant Summers so that he could interview them.
Although he was unable to locate them, Deputy Farris applied for warrants for theft of
property between the value of $10,000 and $60,000 against the Defendant and co-
defendant Summers on January 14, 2010. In May or June 2015, the District Attorney
General’s Office informed Deputy Farris that the Defendant and co-defendant Summers
had been arrested.
The Defendant did not testify. The jury found the Defendant guilty of theft of
property between the value of $10,000 and $60,000.
Sentencing Hearing
At a sentencing hearing, the State introduced a copy of the Defendant’s
presentence report and certified judgments of conviction establishing the Defendant’s
prior convictions for the following felony offenses:
Conviction Offense Classification Date of
Conviction
Theft of property between the value of Class C felony 09/26/2013
$10,000 and $60,0002
Altering vehicle license plate Class E felony 08/20/2010
Felony failure to appear Class E felony 04/19/2002
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The trial court did not consider this conviction and the Defendant’s 2010 conviction for altering
a vehicle license plate in its determination of the Defendant’s range and offender classification because
the underlying offenses occurred after the current offense.
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Possession of 0.5 grams or more of a Class E felony 04/19/2002
Schedule VI controlled substance
Possession of a Schedule II controlled Class B felony 09/18/1998
substance, cocaine, for resale
Theft of property between the value of $1,000 Class D felony 08/15/1996
and $10,000
Attempted possession of a Schedule II Class C felony 08/15/1996
substance, cocaine, for resale
The Defendant offered an allocution. He stated that he had a “bad history” but
that he was “not that same person any[ ]more.” The trial court found that several
enhancement factors applied to the Defendant. The trial court found that the Defendant
had a prior history of criminal convictions or criminal behavior in addition to that
necessary to establish the range. See Tenn. Code Ann. § 40-35-114(1). The trial court
noted that the Defendant committed two felonies after the current offense and had
committed numerous misdemeanors. The trial court also found that, prior to his current
trial or sentencing, the Defendant had been released into the community and had failed to
comply with the conditions of that release. See Tenn. Code Ann. § 40-35-114(8). The
trial court found that the Defendant’s probation or parole had been revoked
approximately twelve times. As a mitigating factor, the trial court found that the
Defendant’s offense had neither caused nor threatened serious bodily injury, see Tenn.
Code Ann. § 40-35-113(1), but the trial court did not give this factor “significant weight.”
The trial court sentenced the Defendant as a Range III persistent offender to fifteen years
with release eligibility after service of forty-five percent of the sentence. The trial court
found that, because the Defendant’s sentence was over ten years, the Defendant was not
eligible for an alternative sentence. See Tenn. Code Ann. § 40-35-303(a). Further, the
trial court stated that alternative sentencing was inappropriate in the Defendant’s case
because the Defendant violated the terms of his alternative sentences many times in the
past. Thus, the trial court ordered the Defendant to serve his sentence in confinement.
The Defendant filed a motion for new trial, which the trial court denied on
December 16, 2016. The Defendant now timely appeals.
II. Analysis
Sufficiency of the Evidence
The Defendant argues that the State did not sufficiently establish his identity as the
perpetrator of the theft. He also asserts that “[t]he description of the property was
insufficient as a matter of law” and that the State did not establish a connection between
Bedford County and the offense because “[o]ther than testimony from Trooper Allison[,]
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who issued a citation to one of the defendants in Clay County, . . . there [wa]s no eye-
witness testimony presented placing the defendants in Bedford County and in possession
of the alleged stolen goods.”
Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted), 279 S.W.3d 265, 275 (Tenn. 2009)) (internal
quotation marks omitted).
A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).
“A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner’s effective consent.” Tenn. Code Ann. § 39-14-103(a) (2009). Theft of property
valued between $10,000 and $60,000 is a Class C felony. Tenn. Code Ann. § 39-14-
105(4) (2009).
Identity of the Perpetrator
The identity of the perpetrator is “an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Identity may be established with circumstantial
evidence alone, and the “jury decides the weight to be given to circumstantial evidence,
and [t]he inferences to be drawn from such evidence . . . .” Id. (internal quotation marks
omitted). The question of identity is a question of fact left to the trier of fact to resolve.
State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982).
Here, when the evidence is viewed in the light most favorable to the State, we
conclude that a rational juror could have found that the Defendant was the perpetrator of
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the theft of two utility vehicles from Smith Equipment beyond a reasonable doubt. When
Trooper Allison stopped the Defendant and co-defendant Summers’ vehicle because the
brake lights on their trailer were not operating, the Defendant and co-defendant Summers
were transporting two utility vehicles. The physical descriptions and VINs of the utility
vehicles on the Defendant’s trailer matched the description and VINs of the utility
vehicles stolen from Smith Equipment. Additionally, Trooper Allison stopped the
Defendant on the same day that Mr. Smith discovered that two utility vehicles had been
stolen from Smith Equipment. It was the jury’s prerogative to infer based on this
evidence that the Defendant was the perpetrator of the theft from Smith Equipment. See
State v. Charles Bradley Mims, No. W2015-02072-CCA-R3-CD, 2016 WL 3951742, at
*4 (Tenn. Crim. App. July 19, 2016) (concluding that the evidence was sufficient to
establish the identity of the defendant in part because the defendant was found with the
stolen property shortly after its theft), no perm. app. filed.
Insufficient Property Description
The Defendant appears to argue that the proof did not establish that the utility
vehicles found on the Defendant’s trailer were the same vehicles stolen from Smith
Equipment. However, the evidence introduced at trial established that the description of
the utility vehicles that Trooper Allison observed on the Defendant’s trailer matched the
description of the stolen utility vehicles provided by Mr. Smith. Additionally, Deputy
Burris cross-checked the VINs of both vehicles with the VINs of the two stolen vehicles
in the NCIC database and determined that they were a match. It was within the purview
of the jury to infer, based on this circumstantial evidence, that the utility vehicles found
on the Defendant’s trailer were the same utility vehicles stolen from Smith Equipment.
Improper Venue
“Because Article 1, Section 9 of the Tennessee Constitution gives a person
accused of a crime the right to have a jury trial in the county in which the crime was
committed, venue is considered a jurisdictional fact in a criminal prosecution.” Ellis v.
Carlton, 986 S.W.2d 600, 601 (Tenn. Crim. App. 1998) (citing Harvey v. State, 376
S.W.2d 497, 498 (Tenn. 1964); Norris v. State, 155 S.W. 165 (Tenn. 1913)). “It has thus
been stated that the jurisdiction of the trial court is limited to the crimes which occur
within the territorial boundaries of the county in which it sits.” Id. (citing State v. Hill,
847 S.W.2d 544, 545 (Tenn. Crim. App. 1992)); see also Tenn. R. Crim. P. 18(a). The
State has the burden of proving venue by a preponderance of the evidence. Harvey, 376
S.W.2d at 498. Venue may be proven by direct or circumstantial evidence, and “the jury
is entitled to draw reasonable inferences from the evidence.” State v. Young, 196 S.W.3d
85, 101-02 (Tenn. 2006).
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Here, Mr. Smith testified that he owned Smith Equipment, which was located in
Bedford County. Two utility vehicles were stolen from Smith Equipment; a yellow
utility vehicle owned by Smith Equipment and a green and black utility vehicle owned by
Mr. Walker. Trooper Allison stopped the Defendant and co-defendant Summers while
they were transporting two utility vehicles that matched the description of the utility
vehicles stolen from Smith Equipment: a green utility vehicle and a yellow utility vehicle.
This evidence is sufficient for a rational trier of fact to infer that the Defendant stole
property from Smith Equipment in Bedford County. The Defendant is not entitled to
relief on this ground.
Excessive Sentence
The Defendant argues that “a sentence of fifteen years was not appropriate under
the facts as stated in the record” because “the ‘totality of the circumstances’ was such that
the [D]efendant submits that the sentence imposed is excessive and contrary to the law in
this matter.”
When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). The party
challenging the sentence on appeal bears the burden of establishing that the sentence was
improper. Tenn. Code Ann. § 40-35-401 (2009), Sentencing Comm’n Cmts.
In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant’s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210(b) (2009); State v. Taylor, 63
S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court must also consider the
potential or lack of potential for rehabilitation or treatment of the defendant in
determining the sentence alternative or length of a term to be imposed. Tenn. Code Ann.
§ 40-35-103(5) (2009).
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In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and
(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement
factors set out in §§ 40-35-113 and 40-35-114.
Tenn. Code Ann. § 40-35-210(c) (2009).
Although the trial court should also consider enhancement and mitigating factors,
such factors are advisory only. See Tenn. Code Ann. § 40-35-114 (2009); see also Bise,
380 S.W.3d at 699 n.33, 704; State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). We
note that “a trial court’s weighing of various mitigating and enhancement factors [is] left
to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the
trial court is free to select any sentence within the applicable range so long as the length
of the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’”
Id. at 343. 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. “[Appellate courts are] bound by a
trial court’s decision as to the length of the sentence imposed so long as it is imposed in a
manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Carter, 254 S.W.3d at 346.
In this case, the trial court sentenced the Defendant, as a Range III persistent
offender, to a term of fifteen years. On appeal, the Defendant does not challenge the trial
court’s finding that he is a Range III offender. Theft of property between the value of
$10,000 and $60,000 is a Class C felony, see Tenn. Code Ann. § 39-14-105(a)(4) (2009),
and as a Range III persistent offender, the Defendant’s sentence range was ten to fifteen
years. Tenn. Code Ann. § 40-35-112(c)(3) (2009). In determining the specific sentence
within the range of punishment, the trial court found that the Defendant had a previous
history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range, see Tenn. Code Ann. § 40-35-114(1) (2009), and that the
Defendant had failed to comply with the conditions of release into the community, see
Tenn. Code Ann. § 40-35-114(8) (2009), and enhanced the Defendant’s sentence
accordingly. The Defendant’s presentence report supports the trial court’s application of
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these enhancement factors. The trial court did not give significant weight to the
mitigating factor that the Defendant’s offense had neither caused nor threatened serious
bodily injury, see Tenn. Code Ann. § 40-35-113(1) (2009). In any event, as previously
noted, enhancement and mitigating factors are advisory only, and the trial court was “free
to select any sentence within the applicable range so long as the length of the sentence is
‘consistent with the purposes and principles of [the Sentencing Act].’” Carter, 254
S.W.3d at 343. The trial court imposed a sentence within the appropriate range that
reflects a proper application of the purposes and principles of sentencing; therefore, the
trial court’s sentencing determinations are entitled to a presumption of reasonableness.
Bise, 380 S.W.3d at 707. The Defendant has not established that the trial court abused its
discretion in sentencing the Defendant to fifteen years for theft of property between the
value of $10,000 and $60,000.
Plain Error Review
The Defendant additionally asks this court to conduct a plain error review of “all
objections” and “all issues regarding venue and jurisdiction[.]” Tennessee Court of
Criminal Appeals Rule 10(b) states that “[i]ssues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in
this court.” Tenn. Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a)(7). This issue is
waived because the Defendant failed to include any argument, citation to authorities, or
references to the record.
III. Conclusion
Based on the aforementioned reasons, we affirm the Defendant’s conviction and
sentence.
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ROBERT L. HOLLOWAY, JR., JUDGE
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