State of Tennessee v. Anterrio Chambers ( 2019 )

04/15/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 5, 2019
STATE OF TENNESSEE v. ANTERRIO CHAMBERS
Appeal from the Criminal Court for Shelby County
No. 16-00124 J. Robert Carter, Jr., Judge
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No. W2018-01423-CCA-R3-CD
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The Defendant, Anterrio Chambers, was convicted of attempted first degree murder, two
counts of aggravated assault, reckless endangerment, and employment of a firearm during
the commission of or attempt to commit a dangerous felony. He received an effective
thirty-one-year sentence. On appeal, the Defendant challenges the sufficiency of the
evidence supporting his convictions, the trial court’s failure to charge misdemeanor
reckless endangerment as a lesser-included offense of attempted first degree murder, and
the trial court’s imposition of partial consecutive sentences. Upon reviewing the record
and the applicable law, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.
Jason M. Matthews (on appeal) and Jennifer Mitchell (at trial), Memphis, Tennessee, for
the Appellant, Anterrio Chambers.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Michael McCusker,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
The evidence presented at trial established that during the evening hours of July
15, 2015, the Defendant and two other men fired multiple shots at Mr. Ronald Young and
Mr. Brandon Brown while in the parking lot of Wolfchase Galleria in Shelby County,
Tennessee. Ms. Kourtney Kelley, the Defendant’s co-defendant, set up the confrontation
because she believed Mr. Young had taken money from her during a burglary of her
home. The Defendant was charged with attempted first degree murder of Mr. Young,
aggravated assault of Mr. Young and Mr. Brown, reckless endangerment of others who
were in the parking lot at the time of the shooting, and employment of a firearm during
the commission of or attempt to commit a dangerous felony, i.e., attempted first degree
murder.
Mr. Young testified that prior to the shooting, Ms. Kelley called him and stated
that she wanted to get something to eat, and Mr. Young asked her to meet him at the
mall. Although Ms. Kelley stated that she would be at the mall in ten to fifteen minutes,
she did not arrive until an hour later. Mr. Young stated that he believed something was
wrong because Ms. Kelley was generally punctual. At approximately 6:30 p.m. or 7:00
p.m., Mr. Young met Ms. Kelley by one of the entrances to the mall. Ms. Kelley was
sweating and acting nervous and did not make eye contact with Mr. Young. Mr. Young
gave Ms. Kelley $10.00 to purchase food, and she walked toward the food court, while
Mr. Young and Mr. Brown exited the mall.
As Mr. Young was talking on his cell phone, he saw two men, one of whom was
the Defendant, make eye contact with him and Mr. Brown. The Defendant was wearing
“highlighter pants, bright yellow, and a colorful T-shirt.” Ms. Kelley had previously
mentioned the Defendant to Mr. Young, and Mr. Young had viewed a photograph of the
Defendant on Ms. Kelley’s Facebook page. Mr. Young believed that Ms. Kelley and the
Defendant were dating.
The men attempted to cut off the path of Mr. Young and Mr. Brown. Mr. Young
ended his call and began walking toward his car. He testified that he saw a gun in the
Defendant’s pants pocket and that the Defendant was holding up his pants to keep his gun
from falling out. The Defendant asked Mr. Young if his name was “Ron” or “Ronnie”
and whether Mr. Young had been breaking into houses in Bartlett. Mr. Young said he
did not know why the Defendant was asking him such questions. Mr. Young told the
Defendant that he had the wrong person. Two other men were with the Defendant and
were “[f]ollowing his lead.”
Mr. Young testified that he believed his life was in danger and began walking
faster to his car. Once Mr. Young and Mr. Brown entered Mr. Young’s car, the
Defendant approached the driver’s side window and said, “[L]et me talk to you real
quick.” Mr. Young replied, “[N]o, we ain’t got nothing to talk about.” He started his car,
backed out of his parking spot, and drove in reverse in the parking lot while the
Defendant and the other men began shooting at Mr. Young and Mr. Brown. The
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Defendant continued to chase after the car and shoot at the occupants, and Mr. Young
feared for his life. As Mr. Young was driving from the scene, his mother called him and
met him at a friend’s home. Mr. Young’s mother drove him and Mr. Brown back to the
mall where they spoke to police officers.
Mr. Young testified that bullets struck the front of his car, the passenger side door,
the back panel of the passenger side door, and his two front tires. He had to have the car
repainted and the two front tires replaced. Bullet fragments were removed from the car.
Two days after the shooting, Mr. Young identified the Defendant and Ms. Kelley in a
photographic lineups.
On cross-examination, Mr. Young testified that he had known Ms. Kelley for
approximately two months prior to the shooting, that they had met through social media,
and that she was not his girlfriend. Mr. Young did not recall obtaining money from Ms.
Kelley on the day before the shooting.
Mr. Young stated that when he first saw the Defendant in the parking lot, the
Defendant was near Ms. Kelley’s car and appeared “kind of angry.” The Defendant
began walking in between cars and asking Mr. Young questions. The Defendant
followed Mr. Young to his car, and one of the men who was with the Defendant stood on
the passenger side of the car. Mr. Young did not know the whereabouts of a third man
who was with the Defendant. Once Mr. Young started his car, he cracked open his
window, and the Defendant said, “Get out the car, I need to talk to you.” Mr. Young saw
the Defendant holding the gun down by his side.
Mr. Young testified that prior to the shooting, he knew of the Defendant but had
never seen him. When officers questioned Mr. Young at the scene, he told them that he
did not know the identity of the shooters but that he believed Ms. Kelley had set up the
shooting. Later that day, Mr. Young looked at Ms. Kelley’s Facebook page and saw a
photograph of the Defendant, whom he recognized as the shooter. On redirect
examination, Mr. Young stated that Ms. Kelley attempted to contact him following the
shooting.
A surveillance recording of the shooting was played for the jury and showed that
the shooting occurred during the early evening while it was still daylight. The parking lot
of the mall was filled with cars, and people were walking to and from the mall. The
recording showed bystanders in the parking lot at the time of the shooting running for
cover. A family that included two children was walking into the parking lot when the
shooting occurred, ducked down, and ran back into the mall.
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Mr. Brandon Brown’s testimony at trial was consistent with Mr. Young’s
regarding Mr. Young’s meeting Ms. Kelley at the mall, her behavior, and their encounter
with the Defendant and two other men in the parking lot. Mr. Brown was unable to
identify the Defendant at trial and explained that he did not have the opportunity to look
at the Defendant closely at the time of the shooting. Mr. Brown was focused on one of
the other men, who was also in possession of a gun. Mr. Brown stated that when he and
Mr. Young got into Mr. Young’s car, the second man with a gun was standing toward the
front of the car on the passenger’s side. A third man was near the car.
Mr. Brown testified that after Mr. Young put the car in reverse, the man who was
near the passenger’s side shot twice into the passenger’s side. As Mr. Young backed out
of the parking lot, the Defendant fired two more shots into the front of the car. The
Defendant then began chasing them and shooting at them.
Ms. Kelley testified that she dated the Defendant on and off throughout high
school and that they broke up when she was a junior or senior. She met Mr. Young
during the summer of her freshmen year of college, and they had been “talking, dating”
for one or two months prior to the shooting. She stated that she and Mr. Young obtained
$4,000 after they participated in “a fraud situation with a bank account” and that they
shared the proceeds.
On the day of the shooting, Ms. Kelley returned home from work to discover that
the glass to her back door was broken and $2,000 in cash, which was her share of the
proceeds, was missing from a shoebox in her closet. No other items were taken from her
home. Ms. Kelley believed Mr. Young was involved in the burglary because he was the
only one who knew about the money. She testified that she was angry and upset and that
she contacted the Defendant and told him what had occurred. The Defendant told her
that he would speak to Mr. Young about the money. Ms. Kelley testified that the plan
was for the Defendant to approach Mr. Young and ask whether he had taken the money.
Ms. Kelley maintained that she only wanted Mr. Young to admit that he did it and for
him to know that she was aware that he was the perpetrator. She stated, “I never would
have imagined or even wanted things to go to the point that it did.”
The Defendant contacted Ms. Kelley and instructed her to pick him up at a
friend’s house. Ms. Kelley arrived after 5:00 p.m., and the Defendant, a man named
“Rico,” and another man got into Ms. Kelley’s car. Ms. Kelley said the Defendant was
wearing yellow pants and a black and yellow sweater. When he got into Ms. Kelley’s
car, she realized that he had a gun. The Defendant took the gun from his waist and put it
under the seat. Ms. Kelley told the Defendant that she did not want him to use the gun
and that he did not have to bring it. The Defendant assured her that he would not use it
and would not take it out of the car.
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Ms. Kelley testified that during this time, she was in contact with Mr. Young and
that they agreed to meet at the mall so that Mr. Young could give her money for food.
After picking up the Defendant and the other two men, Ms. Kelley contacted Mr. Young
and told him that she was on her way to the mall. She arrived at the mall around 6:00
p.m. or 6:30 p.m. She parked in the parking lot near the entrance to the food court and
entered the mall, while the three men remained in the car. She met with Mr. Brown and
Mr. Young, who gave her $10. Mr. Young and Mr. Brown walked toward the exit, while
Ms. Kelley walked toward the food court. She sent a text message to the Defendant that
the two men were exiting the mall. Ms. Kelley stated that while walking toward the food
court, she heard gunshots and “panicked.” Once the gunshots ceased, she ran outside to
her car.
Ms. Kelley testified that when she arrived at her car, the Defendant and the other
two men were in her car, and the Defendant was sitting in the driver’s seat. She said that
the men were “furious” and “very frantic” and that she was angry with the Defendant
because “it wasn’t supposed to go that way.” The Defendant asked her where Mr. Young
lived, and Ms. Kelley refused to tell him, which angered the Defendant. Ms. Kelley
stated that while leaving the mall, she called Mr. Young and sent him text messages
asking if he was okay. She drove the Defendant and the other two men back to the home
of the Defendant’s friend, and she then returned home where she told her step-father what
had occurred.
Ms. Kelley was subsequently arrested, and her charges were pending at the time of
her testimony. On cross-examination, she testified that she had not been made any
promises in exchange for her testimony and that she did not know what would occur with
her charges. She said she only knew that she was required to testify truthfully.
Memphis Police Sergeant Adam Pickering with the Crime Scene Investigation
Unit responded to the scene. He collected thirteen spent nine millimeter shell casings and
a projectile. He noted that a Hyundai in the parking lot appeared to have been struck by
bullets on the driver’s side taillight. He said it appeared that several rounds were fired in
a brief period of time and that the shell casings were laid out on the parking lot in a
direction running east to west.
Sergeant Pickering went to another location to examine Mr. Young’s car. He
observed an apparent bullet strike to the hood of the car in front of the driver’s seat, two
apparent projectile strikes on the passenger door, a possible bullet graze on the vent
window on the passenger side, and a possible bullet strike on the passenger side fender.
The jury convicted the Defendant of attempted first degree murder of Mr. Young,
aggravated assault of Mr. Young through the use or display of a deadly weapon,
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aggravated assault of Mr. Brown through the use or display of a deadly weapon, reckless
endangerment, and employment of a firearm during the commission of or attempt to
commit a dangerous felony. The trial court sentenced the Defendant to twenty-one years
for attempted first degree murder, four years for each aggravated assault, two years for
reckless endangerment, and six years for employing a firearm during the commission of a
dangerous felony. The trial court ordered the Defendant to serve his sentences for
attempted first degree murder and the firearm offense consecutively. The trial court also
ordered the Defendant to serve his sentences for aggravated assault and reckless
endangerment concurrently to each other but consecutively to his sentences for attempted
first degree murder and the firearm offense, for an effective sentence of thirty-one years.
ANALYSIS
I. Sufficiency
The Defendant challenges the sufficiency of the evidence to support his
convictions. The Defendant’s brief on this issue consists of one page merely reciting this
court’s standard of review on issues of sufficiency. He does not state the convictions that
he challenges, the basis for his challenge, or any argument to support his claim. Despite
the deficiencies in the Defendant’s brief, however, we conclude that the evidence is
sufficient to support the convictions.
When a defendant challenges the sufficiency of the evidence, the relevant question
for this court 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). On appeal,
“‘the State is entitled to the strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn therefrom.’” State v. Elkins, 102
S.W.3d 578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.
2000)). Therefore, this court will not re-weigh or reevaluate the evidence. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact,
not this court, who resolves any questions concerning “the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the
evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is
then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to
support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court
applies the same standard of review regardless of whether the conviction was predicated
on direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn.
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2011). “Circumstantial evidence alone is sufficient to support a conviction, and the
circumstantial evidence need not exclude every reasonable hypothesis except that of
guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).
The Defendant was convicted of attempted first degree murder of Mr. Young.
First degree murder is the premeditated and intentional killing of another. T.C.A. § 39-
13-202(a)(1). As the trial court instructed the jury, a person attempts to commit a
criminal offense who, “acting with the kind of culpability otherwise required for the
offense … [a]cts with intent to cause a result that is an element of the offense, and
believes the conduct will cause the result without further conduct on the person’s part.”
T.C.A. § 39-12-101(a)(2). A premeditated act is one “done after the exercise of
reflection and judgment.” T.C.A. § 39-13-202(d). Premeditation requires a finding that
“the intent to kill must have been formed prior to the act itself. It is not necessary that the
purpose to kill preexist in the mind of the accused for any definite period of time.” Id.
Premeditation is a question of fact for the jury’s determination. State v. Davidson, 121
S.W.3d 600, 614 (Tenn. 2003). It may be established by any evidence which could lead a
rational trier of fact to infer that premeditation was established by the proof as required
by statute. Id. at 615. Courts frequently look to the circumstances surrounding a killing
to discern the presence of evidence sufficient to support a finding of premeditation. State
v. Larkin, 443 S.W.3d 751, 815 (Tenn. Crim. App. 2013).
Factors tending to support the existence of premeditation include: “the use of a
deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations
by the defendant of an intent to kill; evidence of procurement of a weapon; and
preparations before the killing for concealment of the crime, and calmness immediately
after the killing.” Bland, 958 S.W.2d at 660. The factors listed in Bland are not
exhaustive. State v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013). The nature of the killing
or evidence establishing a motive for the killing may also support a conclusion that the
crime was premeditated. Id. Lack of provocation by the victim, failure to render aid, and
destruction or secretion of evidence may also support an inference of premeditation.
Larkin, 443 S.W.3d at 815-16 (citing State v. Thacker, 164 S.W.3d 208, 222 (Tenn.
2005); State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000)). “Under Bland,
shooting a retreating victim alone provides circumstantial evidence of premeditation.”
State v. Dickson, 413 S.W.3d 735, 746 (Tenn. 2013).
The Defendant also was convicted of aggravated assault of Mr. Young and Mr.
Brown. As applicable to this case, a person commits aggravated assault who
“[i]ntentionally or knowingly causes another to reasonably fear imminent bodily injury”
through “the use or display of a deadly weapon.” T.C.A. §§ 39-13-101(a)(2) (2014), 39-
13-102(a)(1)(A)(iii) (Supp. 2015). The Defendant was convicted of reckless
endangerment of those in the parking lot at the time of the shooting. As applicable to this
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case, a person commits reckless endangerment who “recklessly engages in conduct that
places or may place another person in imminent dangers of death or serious bodily
injury” and does so with a deadly weapon. T.C.A. § 39-13-103(a), (b)(2). Finally, the
Defendant was convicted of employing a firearm during the commission of or attempt to
commit a dangerous felony, and the dangerous felony was attempted first degree murder.
See T.C.A. § 39-17-1324(b), (i)(1)(A).
The evidence presented at trial, when viewed in a light most favorable to the State,
established that Ms. Kelley discovered money missing from her home and believed that
Mr. Young had taken it. She contacted the Defendant, who agreed to confront Mr.
Young. Ms. Kelley contacted Mr. Young and arranged to meet him at a mall under the
guise of obtaining money for food. She then picked up the Defendant who brought his
gun and two of his friends to confront Mr. Young. After meeting Mr. Young in the mall,
Ms. Kelley sent a text message to the Defendant, informing him that Mr. Young and Mr.
Brown were exiting the mall.
Once Mr. Young and Mr. Brown walked outside, the Defendant and two other
men approached them while armed with guns. The Defendant and the two men followed
Mr. Young and Mr. Brown to Mr. Young’s car. The Defendant held his gun at his side
while attempting to speak to Mr. Young. When Mr. Young began driving away, the
Defendant and one of the men fired numerous shots at Mr. Young and Mr. Brown. The
Defendant chased after Mr. Young and Mr. Brown and continued firing at them as they
drove away. The Defendant asked Ms. Kelley where Mr. Young lived, but Ms. Kelley
refused to tell him. Instead, the Defendant, the two men, and Ms. Kelley fled the scene.
The shooting occurred in the parking lot of a crowded mall during the early
evening hours. A video recording of the shooting showed that others were in the parking
lot when the shooting occurred, and a family that included two children were seen in the
video walking outside the mall, ducking in an effort to avoid the bullets, and running
back into the mall. We conclude that this evidence is sufficient to support the
Defendant’s convictions.
II. Lesser Included Offenses
The Defendant challenges the trial court’s failure to instruct the jury on
misdemeanor reckless endangerment as a lesser included offense of attempted first
degree murder. The Defendant acknowledges that he did not request such an instruction
at trial and that he did not raise the issue in his motion for new trial. See T.C.A. § 40-18-
110(c) (providing that a defendant’s failure to submit a written request to the trial court
for an instruction on a lesser included offense results in waiver of the issue on appeal);
Tenn. R. App. P. 3(e) (requiring that certain issues, including “jury instructions granted
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or refused,” be raised in a motion for new trial). However, the Defendant seeks plain
error review of the issue.
When necessary to do substantial justice, an appellate court may consider an error
that has affected the substantial rights of a party at any time, even though the error was
not raised in the motion for a new trial or assigned as error on appeal.” Tenn. R. App. P.
36(b). Five factors must be met before this court will conclude that plain error exists:
“(a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a
substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of
the error is ‘necessary to do substantial justice.’”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted)). All five factors must be
established before this court will recognize plain error and “‘complete consideration of all
the factors is not necessary when it is clear from the record that at least one of the factors
cannot be established.’” State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016) (quoting
Smith, 24 S.W.3d at 283). “‘When asserting plain error, the defendant bears the burden
of persuading the appellate court that the trial court committed plain error and that the
error was of sufficient magnitude that it probably changed the outcome of the trial.’” Id.
at 505 (quoting State v. Smith, 492 S.W.3d 224, 232 (Tenn. 2016)).
A person commits the misdemeanor offense of reckless endangerment who
“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). If a person does
so while using a deadly weapon, the offense is a Class E felony. Id. (b)(2). This court
has recognized that misdemeanor reckless endangerment is a lesser included offense of
attempted first degree murder. See State v. Frederick Edward Braxton and Leonard
Cardell Harris, No. M2009-01735-CCA-R3-CD, 2011 WL 3809773, at *18 (Tenn. Crim.
App. Aug. 26, 2011); State v. David Lee Heakin, No. M2008-01834-CCA-R3-CD, 2010
WL 532863, at *8 (Tenn. Crim. App. Feb. 16, 2010).
To establish that the trial court’s failure to instruct the jury on a lesser included
offense resulted is plain error, the Defendant must show “a reasonable probability that ‘a
reasonable jury would have convicted the defendant of the lesser-included offense instead
of the charged offense.’” Martin, 505 S.W.3d at 505 (quoting State v. Richmond, 90
S.W.3d 648, 662 (Tenn. 2002)). Our supreme court has held that:
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where the jury convicts the defendant of a greater charged offense rather
than an immediately lesser offense standing between omitted lesser-
included offenses and the offense for which the defendant was convicted,
any error from the omission of jury instructions on these other asserted
lesser-included offenses is harmless beyond a reasonable doubt because the
jury, by finding the defendant guilty of the greater offense to the exclusion
of the immediately lesser offense, necessarily rejected all other lesser-
included offenses.
Moore v. State, 485 S.W.3d 411, 421-22 (Tenn. 2016) (citing State v. Williams, 977
S.W.2d 101, 106 (Tenn. 1998)). “[T]he term ‘immediately lesser offense’ does not
encompass facilitation of the charged offense.” Id. at 422 n.4.
The trial court instructed the jury on facilitation of attempted first degree murder,
attempted second degree murder, facilitation of attempted second degree murder,
attempted voluntary manslaughter, and facilitation of attempted voluntary manslaughter
as lesser included offenses of attempted first degree murder. Had misdemeanor reckless
endangerment been included in the jury charge, it would have been listed after attempted
voluntary manslaughter. The jury convicted the Defendant of attempted first degree
murder to the exclusion of the immediate lesser offenses of attempted second degree
murder and attempted voluntary manslaughter. The Defendant has failed to show a
reasonable probability that a reasonable jury would have convicted him of misdemeanor
reckless endangerment rather than attempted first degree murder had the trial court
provided such a jury instruction. Thus, the Defendant has failed to establish plain error.
III. Sentencing
The Defendant challenges the trial court’s imposition of partial consecutive
sentences. The only proof presented during the sentencing hearing was the presentence
report, which is not included in the appellate record. The trial court found that the
Defendant was a Range I offender. The trial court applied an enhancement factor based
upon the Defendant’s criminal history, giving significant weight to a prior aggravated
robbery conviction. See T.C.A. § 40-35-114(1) (“The defendant has a previous history of
criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range.”). The trial court also applied as enhancement factors that the offenses
involved more than one victim and that the Defendant “had no hesitation about
committing a crime when the risk to human life was high.” T.C.A. § 40-35-114(3), (10).
The trial court described the circumstances of the offenses as “horrifying” and noted that
the mall was “busy” at the time of the shooting. The trial court further noted that the
video recording of the shooting showed “crowds of people with children who were diving
out of the way.”
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The trial court sentenced the Defendant to twenty-one years for attempted first
degree murder, four years for each aggravated assault, two years for reckless
endangerment, and six years for employing a firearm during the commission of a
dangerous felony. The trial court ordered the Defendant to serve his sentences for
attempted first degree murder and the firearm offense consecutively. The trial court also
ordered the Defendant to serve his sentences for aggravated assault and reckless
endangerment concurrently to each other but consecutively to his sentences for attempted
first degree murder and the firearm offense, for an effective sentence of thirty-one years.
This court reviews challenges to the length of a sentence under an abuse of
discretion standard, “granting a presumption of reasonableness to within-range sentences
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). A trial court abuses its discretion when
it applies an incorrect legal standard, reaches an illogical conclusion, bases its decision on
a clearly erroneous assessment of the evidence, or employs reasoning that causes an
injustice to the party complaining. State v. Herron, 461 S.W.3d 890, 904 (Tenn. 2015).
This court will uphold the sentence “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.” Bise, 380 S.W.3d at 709-10. The decision to impose
consecutive sentences rests within the sound discretion of the trial court. State v. Hayes,
337 S.W.3d 235, 266 (Tenn. Crim. App. 2010). The standard of review for consecutive
sentencing is abuse of discretion with a presumption of reasonableness. State v. Pollard,
432 S.W.3d 851, 859 (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. at 862. The appealing party bears the burden of proving that the
sentence was improper. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Although the Defendant contends on appeal that the trial court erred in imposing
partial consecutive sentences, he failed to identify in his brief how the trial court erred or
to offer any argument to support his claim of error. Rather, the Defendant merely states
the standard of review and includes a block quotation from this court’s opinion in State v.
Biggs, in which this court held that the trial court erred in imposing partial consecutive
sentences because the sentence was not “‘justly deserved in relation to the seriousness of
the offense’” and was not the “‘least severe measure necessary to achieve the purposes
for which the sentence is imposed.’” 482 S.W.3d 923, 927 (Tenn. Crim. App. 2015)
(quoting T.C.A. §§ 40-35-102, -103).
We note that consecutive sentencing for the firearm charge and the underlying
felony of attempted first degree murder was mandatory. See T.C.A. § 39-17-1324(e)(1).
The trial court ordered the Defendant to serve his sentences for aggravated assault and
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reckless endangerment concurrently to each other but consecutively to his sentences for
attempted first degree murder and the firearm offense upon finding 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.” T.C.A. §
40-35-115(b)(4). The Defendant does not challenge this finding on appeal. Furthermore,
the trial court relied upon the Defendant’s presentence report and his criminal history as
stated in the presentence report in imposing partial consecutive sentences. However, the
presentence report is not included in the appellate record. The Defendant, as the
appellant, has the burden of assuring that the appellate record includes “a full, accurate,
and complete account of what transpired with respect to those issues that are the bases of
appeal.” See Tenn. R. App. P. 24(a). “In the absence of an adequate record on appeal,
this court must presume that the trial court’s rulings were supported by sufficient
evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); see State v.
Scott Edward Robins, No. M2014-02372-CCA-R3-CD, 2015 WL 6437208, at *2 (Tenn.
Crim. App. Oct. 23, 2015) (stating that “[o]rdinarily, the presentence report is a necessary
part of this court’s review without which we must presume that the sentences imposed are
correct”); State v. Gregory Lynn Hill, No. E2008-02521-CCA-R3-CD, 2009 WL
3711993, at *12 (Tenn. Crim. App. Nov. 6, 2009) (holding that due to the absence of the
presentence report from the appellate record, this court must presume that the trial court’s
rulings regarding the defendant’s sentence was supported by sufficient evidence).
Accordingly, the Defendant has failed to establish that he is entitled to relief on this issue.
CONCLUSION
Upon reviewing the record and the applicable law, we affirm the judgments of the
trial court.
___________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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