State v. Willie Cunningham ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1999 SESSION
FILED
June 15, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9801-CR-00022
Appellee, )
) SHELBY COUNTY
VS. )
) HON. L. T. LAFFERTY,
WILLIE J. CUNNINGHAM, ) JUDGE
)
Appellant. ) (Aggravated Robbery & Especially
Aggravated Kidnapping)
FOR THE APPELLANT: FOR THE APPELLEE:
A C WHARTON JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
TONY N. BRAYTON GEORGIA BLYTHE FELNER
Asst. Public Defender Asst. Attorney General
(On Appeal) Cordell Hull Bldg., 2nd Fl.
425 Fifth Ave., North
TIMOTHY ALBERS Nashville, TN 37243-0493
Asst. Public Defender
201 Poplar Ave., 2nd Fl. WILLIAM L. GIBBONS
Memphis, TN 38103 District Attorney General
(At Trial)
CHARLES W. BELL, JR.
Asst. District Attorney General
201 Poplar Ave., 3rd Fl.
Memphis, TN 38103
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was found guilty by a jury of aggravated robbery and
especially aggravated kidnapping. The trial court sentenced the defendant to a term of
ten years for aggravated robbery and a term of twenty years for especially aggravated
kidnapping. These sentences were to be served in the Tennessee Department of
Correction and were to run consecutively. The defendant now appeals and presents the
following issues for our review:
1. Whether the trial court erred in admitting evidence of another alleged crime
committed by the defendant;
2. Whether the facts of the case support convictions for both aggravated
robbery and especially aggravated kidnapping; and
3. Whether the trial court erred in ordering the defendant’s sentences to be
served consecutively rather than concurrently.
The proof at trial established that on October 10, 1996, the victim, Xandra
Todd, went to a store on Getwell Street to fill a prescription. After parking her car, a
burgundy Chevrolet Caprice, the victim noticed a shadow behind her car. Since she was
preparing to get out of her car, her driver’s side door was partially open and the window
was halfway down. She turned and saw the defendant walking up the driver’s side of her
car with his hand in his pants. The victim “realized that something wasn’t right” and put
the car in drive. At this point, the defendant put his arm in the partially open door and
said, “If you pull off I’m going to blow your brains out.” The defendant had a gun in his
hand and told the victim to “scoot over.” The victim testified that she moved over to the
passenger side of the car and tried to open the door. The defendant told the victim that
if she got out of the car he would “blow [her] brains out.” The defendant sat in the driver’s
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seat and drove the victim’s car out of the parking lot. The defendant told the victim that
if he found out the police were looking for him, he would find her and kill her. The
defendant asked the victim for money, but she claimed she did not have any. The victim
testified that while she was held captive in the car, the defendant pointed the gun at her
several times and threatened to kill her. The victim further stated that the defendant
threatened her life after she looked at him. The victim testified that she was able to get
a good look at the defendant’s face and looked at him several times to make sure she
could identify him later. The defendant ultimately released the victim in a school parking
lot.
At trial, the State presented Fernando Boyd to testify as to the defendant’s
whereabouts after the robbery on Getwell Street. Mr. Boyd testified that on October 10,
1996, the defendant picked him up in a burgundy Chevrolet Caprice. According to Mr.
Boyd, the two men drove to Holly Springs, Mississippi. They stopped at a gas station in
Holly Springs. The two men saw a young lady pumping gas into a car whereupon the
defendant told Mr. Boyd something to the effect of, “I’m going to get that bitch like I got
that one on Getwell.” The defendant walked over to the young lady, spoke with her, and
she went inside the store. The defendant then sat in her car and the young woman in the
passenger seat of the car went into the store. The defendant drove away in the car and
Mr. Boyd followed the defendant in the burgundy Chevrolet Caprice. The men
subsequently encountered a road block, and although the defendant was allowed through
the roadblock, Mr. Boyd was instructed to pull over to the side of the road because he did
not have a driver license. Mr. Boyd waited a few minutes and then pulled back onto the
highway. A car chase ensued and Mr. Boyd was subsequently apprehended. According
to Mississippi Highway Patrol Officer Barrett, during the chase there was a report over
the radio that the driver of the Chevrolet Caprice was wanted with regard to a carjacking
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in Holly Springs and was armed.
The defendant now contends that the trial court erred in admitting evidence
of the Mississippi carjacking. Under Rule 404(b), “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity with the character trait.” Nonetheless, such evidence may be admissible to
prove identity (including motive and common scheme or plan), intent, knowledge,
completion of the story, opportunity, or preparation, or to rebut a claim of mistake or
accident if asserted as a defense. See State v. McCary, 922 S.W.2d 511, 514 (Tenn.
1996); see also State v. Ray Anthony Nelson, No. 03C01-9706-CR-00197, Hamilton
County (Tenn. Crim. App. filed September 9, 1998, at Knoxville). The conditions that
must be satisfied before allowing evidence of other crimes, wrongs, or acts are:
(1) The court upon request must hold a hearing outside the jury’s
presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and the
reasons for admitting the evidence; and
(3) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b). The trial court must also find “clear and convincing” evidence that
the defendant committed the other crime. State v. Hall, 958 S.W.2d 679, 707 (Tenn.
1997); McCary, 922 S.W.2d at 514; see State v. Parton, 694 S.W.2d 299, 303 (Tenn.
1985); Tenn. R. Evid. 404 Advisory Commission Comment. When a trial court
substantially complies with the procedural requirements of this rule, its determination will
not be overturned absent an abuse of discretion. State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997). W here a court fails to substantially comply with this rule’s procedural
requirements, the court’s decision is afforded no deference. Id.
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Here, the trial court held a jury-out hearing, during which Mr. Boyd’s
testimony was proffered. The trial court determined that proof of the Mississippi
carjacking was offered to prove identification, intention, and guilty knowledge, all
contested issues in this case. The trial court further found that the probative value of this
evidence outweighed any danger of unfair prejudice. The trial court did not, however, find
that there was clear and convincing evidence that the carjacking in Mississippi actually
occurred. The initial question, then, is whether the trial court substantially complied with
the procedural requirements of Rule 404(b), even though it failed to determine that there
was clear and convincing evidence of the Mississippi carjacking.
In State v. Ray Anthony Nelson, No. 03C01-9706-CR-00197, Hamilton
County (Tenn. Crim. App. filed September 9, 1998, at Knoxville), a panel of this Court
determined that even though the trial court failed to conduct a clear and convincing
analysis, the court still substantially complied with the procedural requirements of Rule
404(b) because “there was no real question” or dispute that the events occurred. Here,
the defendant never specifically argued to the trial court that the State failed to prove by
clear and convincing evidence that the events in Mississippi occurred. The defendant,
however, never conceded he committed carjacking in Mississippi. Given that, we are
reluctant to hold that there is no dispute that the carjacking in Mississippi occurred. See
Nelson, No. 03C01-9706-CR-00197 (defendant conceded previously abusing the victim).
Thus, we review de novo the trial court’s decision to admit evidence of the Mississippi
carjacking under Rule 404(b). DuBose, 953 S.W.2d at 652.
The defendant challenges the trial court’s ruling that evidence of the
Mississippi carjacking was admissible to establish identity, intent, and guilty knowledge.
Mr. Boyd testified that the defendant said about a woman pumping gas into her car, “I’m
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going to get that bitch like I got that one on Getwell,” and then proceeded to drive away
in the woman’s car after she and her passenger entered the gas station. When Mr. Boyd
was later apprehended, the burgundy Chevrolet Caprice he was driving was identified as
the one previously stolen on Getwell Street from the victim in this case. The defendant’s
statement to Mr. Boyd in conjunction with his actions prove the defendant had the intent
to rob the victim of her car, and it also proves he had guilty knowledge of the events
surrounding the charged aggravated robbery. The trial court did not abuse its discretion
in finding that the evidence, which was relevant to prove that the crimes charged in this
case were committed, was admitted for a purpose other than to show the defendant’s
character. See Tenn. R. Evid. 404(b) Advisory Commission Comment.
The defendant argues that the admission of the alleged Mississippi
carjacking was more prejudicial than probative. He contends that the State could have
introduced evidence of the defendant’s statement to Mr. Boyd and evidence regarding
how the victim’s car was recovered without detailing the alleged carjacking in Mississippi.
However, to do so would have taken the events in Mississippi out of context and
potentially would have misled the jury. As explained above, the defendant stated an
intent to treat the woman pumping gas in Mississippi as he treated the Getwell Street
victim. Through his subsequent actions, the defendant showed what he meant: that he
took the victim’s car on Getwell Street like he took the woman’s car in Mississippi. While
the evidence regarding the alleged carjacking in Mississippi was prejudicial to the
defendant, the trial court did not abuse its discretion in determining that the probative
value outweighed the prejudicial effect because the circumstances surrounding the act
in Mississippi helped to prove and explain the charged crime.
The defendant also argues that the State failed to prove by clear and
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convincing evidence that the defendant committed a carjacking in Holly Springs,
Mississippi. He claims that because there was no evidence he was charged with
carjacking in Mississippi and because the alleged Mississippi carjacking victim did not
testify, the record does not sufficiently prove that a crime actually occurred. To the
contrary, the evidence showed the defendant intended to take the car in Holly Springs
in the same manner he took the one in this case, that is, by force. The evidence also
showed the defendant took the car in Holly Springs only after the driver and her
passenger exited it and entered the gas station. Moreover, the evidence showed that a
carjacking involving a burgundy Chevrolet Caprice and an armed suspect was reported
in Holly Springs. This constitutes clear and convincing evidence that the defendant
committed the carjacking in Holly Springs, Mississippi, as described by Mr. Boyd on the
witness stand. See Wrather v. State, 169 S.W.2d 854, 858 (Tenn. 1943)(cited in Parton,
694 S.W.2d at 303).
Despite our de novo standard of review, we conclude that the trial court
properly admitted evidence of the Mississippi carjacking under Rule 404(b) because the
evidence was offered for a purpose other than to prove character, the evidence was more
probative than prejudicial, and the record contains clear and convincing evidence that the
events occurred. Even assuming this evidence was improperly admitted, though, any
resulting error was harmless given the substantial evidence of guilt, including the victim’s
identification of the defendant. Tenn. R. Crim. P. 52(a). Thus, the defendant has not
shown entitlement to appellate relief on this issue.
The defendant next contends that the evidence does not support
convictions for both aggravated robbery and especially aggravated kidnapping.
Specifically, the defendant argues that any confinement in this case was essentially
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incidental to the aggravated robbery of the victim and therefore does not constitute a
separate kidnapping offense under the rule set out in State v. Anthony, 817 S.W.2d 299,
306 (Tenn. 1991). In Anthony, the Tennessee Supreme Court formulated the following
test to determine whether each conviction can stand on its own:
[W]hether the confinement, movement, or detention is essentially
incidental to the accompanying felony and is not, therefore,
sufficient to support a separate conviction for kidnapping, or
whether it is significant enough, in and of itself, to warrant
independent prosecution and is, therefore, sufficient to support
such a conviction. . . . [O]ne method of resolving this question is to
ask whether the defendant’s conduct “substantially increased [the]
risk of harm over and above that necessarily present in the crime
of robbery itself.”
Id. at 306 (citation omitted).
In the case at bar, the defendant pointed a gun at the victim when she was
about to get out of her car and told her to “scoot over” into the passenger seat. When the
victim attempted to escape by way of the passenger door, the defendant told her if she
tried to get out of the car he would kill her. The defendant then sat in the driver’s seat
and drove out of the parking lot. After driving for approximately five to seven minutes, the
defendant released the victim from the car. In light of the foregoing, the especially
aggravated kidnapping was not “essentially incidental” to the aggravated robbery of the
victim. The defendant would not allow the victim to get out of the car. The defendant
pointed the gun at the victim several times thereby increasing the risk of harm to the
victim. The defendant threatened the victim’s life several times while she was held
captive in the car. It was certainly not necessary to force the victim to stay in her car in
order to steal her car. As such, the defendant’s convictions for aggravated robbery and
especially aggravated kidnapping are affirmed.
The defendant next contends that the trial court erred in ordering his
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sentences to be served consecutively rather than concurrently. The defendant argues
that the trial court erroneously found him to be a “dangerous offender” as set out in
T.C.A. § 40-35-115(b)(4), that there were no aggravating circumstances that would justify
imposition of consecutive sentences, and that the trial court improperly relied upon
several charges pending against the defendant in sentencing the defendant.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-
401(d) Sentencing Commission Comments. This presumption, however, “is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). As we find that the trial court erred in several aspects of the
defendant’s sentencing, our review of the defendant’s sentence is de novo upon the
record without a presumption of correctness.
The trial court may, in its discretion, impose sentences to run concurrently
or consecutively. T.C.A. § 40-20-111(a). Consecutive sentences may be appropriate
where the trial court finds, by a preponderance of the evidence, 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). In the case at bar, the trial court found that based on the nature of the
crime, the defendant was a dangerous offender. In making the decision to classify the
defendant as a dangerous offender, the trial court took “judicial knowledge” of the fact
that the defendant had three cases of crimes of a similar nature pending for disposition
for trial or a plea. This Court has previously held that the “mere fact that a charge is
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pending, without more, furnishes neither evidence of criminal conduct nor proof that the
defendant is a dangerous offender.” State v. John Allen Chapman, No. 01C01-9604-CC-
00137, Grundy County (Tenn. Crim. App. filed September 30, 1997, at Nashville). As
such, consideration of the pending charges against the defendant was improper.
However, because there was sufficient evidence to find the defendant a dangerous
offender absent consideration of the pending charges, the trial court’s error was
harmless.
In light of the fact that the defendant threatened the victim’s life several
times and pointed the gun at her head several times, we find ample proof that the
defendant’s behavior indicated little or no regard for human life and no hesitation about
committing a crime in which the risk to human life was high. Therefore, the trial court did
not err in finding that the defendant was a dangerous offender. See State v. Wilkerson,
905 S.W.2d 933, 938 (Tenn. 1995).
After finding a defendant is a dangerous offender, the only remaining
considerations for determining his or her eligibility for consecutive sentencing are whether
the sentences are necessary in order to protect the public from further misconduct by the
defendant and whether the terms are reasonably related to the severity of the offenses.
Wilkerson, 905 S.W.2d at 938. The defendant was nineteen years old at the time of
sentencing and had a lengthy juvenile record including a conviction for rape and two
convictions for theft of a motor vehicle. In light of the defendant’s criminal history and his
lack of concern for the life of his victim, we find that consecutive sentences are necessary
in order to protect the public from further misconduct by the defendant. We further find
that an aggregate sentence of thirty years is reasonably related to the severity of the
offenses of especially aggravated kidnapping and aggravated robbery. Accordingly, the
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trial court did not err in ordering the defendant’s sentences to run consecutively.
For the foregoing reasons, we affirm the defendant’s convictions and
consecutive sentences.
JOHN H. PEAY, Judge
CONCUR:
JOE G. RILEY, Judge
JAMES C. BEASLEY, Sr., Special Judge
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