State of Tennessee v. Eric D. Charles ( 2008 )


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  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    October 2, 2007 Session
    STATE OF TENNESSEE v. ERIC D. CHARLES
    Direct Appeal from the Circuit Court for Madison County
    No. 06-502    Donald H. Allen, Judge
    No. W2007-00060-CCA-R3-CD - Filed January 30, 2008
    The defendant, Eric D. Charles, pled guilty in Madison County Circuit Court to aggravated robbery
    and was sentenced as a Range I, standard offender to ten years in the Department of Correction. The
    defendant challenges the trial court’s application of two enhancement factors; the State concedes that
    one of the factors was improperly applied. We conclude that the record supports the trial court’s
    application of the second enhancement factor and affirm the judgment of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA MCGEE
    OGLE, JJ., joined.
    Danny R. Ellis, Jackson, Tennessee, for the appellant, Eric D. Charles.
    Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
    James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    FACTS
    At the sentencing hearing, Kenneth Rhodes, a special agent with the Tennessee Bureau of
    Investigation (TBI), testified that on January 5, 2006, he was working with a confidential informant,
    Eric Hines, to set up an undercover drug purchase from a man named Travont Cole. Agent Rhodes
    and Hines were waiting for Cole in a motel room in Madison County when the defendant arrived.
    The defendant, whom Agent Rhodes had never previously encountered, immediately pointed a gun
    at Hines, who raised his hands and backed into the bathroom. Agent Rhodes testified that the
    defendant took from him a cell phone, a pager, and some money. A struggle then ensued and the
    defendant fled from the room into a stairwell, where he was apprehended by other TBI officers.
    Agent Rhodes never saw the defendant with any narcotics for sale. He testified that he later saw
    Cole in TBI custody in the parking lot, seated next to the “getaway car.” He also said that there was
    a bullet hole in the motel room door which Hines repaired.
    On cross-examination, Agent Rhodes testified that he did not see a doctor or file a workers’
    compensation claim as a result of the robbery. He further acknowledged that Hines was not struck
    by the defendant, did not have any bruises or medical bills, had not seen a psychiatrist or
    psychologist, and had incurred no medical expenses stemming from the robbery. Agent Rhodes
    testified that he fired the bullet that struck the motel room door.
    TBI Agent Romanda Roberson was conducting surveillance in the parking lot of the motel
    in conjunction with the attempted undercover drug purchase. She observed a bluish-green Cadillac
    containing two individuals enter the parking lot. The driver exited the vehicle, and the passenger
    slid into the driver’s seat. As the driver walked up the stairwell of the motel, the passenger backed
    the vehicle into a parking spot at the other end of the parking lot. From her position, Agent
    Roberson could not identify either individual but could discern that both were male. Less than a
    minute after the driver exited the vehicle, Agent Roberson heard the distress call from Agent Rhodes
    and took the occupant of the Cadillac into custody. She later learned that the occupant was Cole,
    the subject of the undercover drug investigation. Agent Roberson never saw any drugs on the
    defendant, nor did she observe narcotics being recovered from him. Prior to the day of the robbery,
    she had never contacted the defendant and had no reason to investigate him.
    On cross-examination, Agent Roberson agreed with defense counsel that Hines did not go
    to the hospital, receive any physical injuries, or consult a psychiatrist or psychologist as a result of
    the robbery. She testified that all of the property taken during the robbery was TBI property
    possessed by Agent Rhodes.
    On redirect examination, Agent Roberson testified that she observed the bullet hole in the
    door of the motel room and that Hines repaired the door himself. On recross examination, Agent
    Roberson testified that Hines does not own the motel and had not submitted a repair bill to TBI for
    the cost of fixing the hole in the door. She agreed that the bullet hole was caused by Agent Rhodes’
    gun.
    The defendant offered several witnesses on his behalf at the sentencing hearing. Teresa Ann
    Robinson, his aunt, testified that she had taken an active role in the defendant’s life when he was
    younger. She said the defendant was a good student and a star athlete who worked during high
    school. Mae Norman Coleman, the defendant’s aunt, said that the defendant was smart, respectful,
    and a hard worker. Wayne Alexander, an assistant principal at the defendant’s high school, testified
    that the defendant is intelligent, treated his teachers with respect, and was an outstanding athlete and
    a leader in school. Larry Charles, the defendant’s father, testified that the defendant attempted to use
    his athletic ability to help him get a college degree but lost his scholarship, after which he became
    quiet and withdrawn. He said that this crime was completely out of character for his son, who is
    timid and knows nothing about how to use a gun. The defendant, speaking on his own behalf,
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    apologized to Agent Rhodes, the trial court, and his family; acknowledged that his behavior was
    wrong; and thanked his family for their support.
    The trial court found that the defendant was a Range I, standard offender. Aggravated
    robbery is a Class B felony; the authorized sentencing range for Range I offenders guilty of a Class
    B felony is eight to twelve years. Tenn. Code Ann. §§ 39-13-402(b); 40-35-112(a)(2) (2006). The
    court sentenced the defendant to ten years incarceration, finding as enhancement factors that he was
    a leader in the commission of an offense involving two or more criminal actors and that the offense
    involved more than one victim. See Tenn. Code Ann. § 40-35-114(2), (3) (2006). The court found
    that the defendant’s conduct was mitigated by his expression of remorse and acceptance of
    responsibility for his actions.
    ANALYSIS
    The defendant argues that the trial court misapplied both enhancement factors and that we
    must reverse his sentence and remand to the trial court for a new sentencing hearing. The State
    concedes that factor (3), the offense involved more than one victim, was improperly applied but
    argues that the defendant is not entitled to relief because a recent amendment to Tennessee’s
    sentencing laws prohibits defendants from appealing the weighing of enhancement and mitigating
    factors. In the alternative, the State argues that factor (2), the multiple criminal actor enhancement
    factor, was properly applied.
    When an accused challenges the length, range, or manner of service of a sentence, it is the
    duty of this court to conduct a de novo review on the record with a presumption that “the
    determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §
    40-35-401(d) (2006). This presumption 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). The presumption does not apply to the legal
    conclusions reached by the trial court in sentencing the accused or to the determinations made by the
    trial court which are predicated upon uncontroverted facts. State v. Butler, 
    900 S.W.2d 305
    , 311
    (Tenn. Crim. App. 1994); State v. Smith, 
    891 S.W.2d 922
    , 929 (Tenn. Crim. App. 1994); State v.
    Bonestel, 
    871 S.W.2d 163
    , 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v.
    Hooper, 
    29 S.W.3d 1
    , 9 (Tenn. 2000). However, this court is required to give great weight to the
    trial court’s determination of controverted facts as the trial court's determination of these facts is
    predicated upon the witnesses’ demeanor and appearance when testifying.
    In conducting a de novo review of a sentence, this court must consider (a) any evidence
    received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
    sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
    characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
    the accused in his own behalf, and (h) the accused’s potential or lack of potential for rehabilitation
    or treatment. Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 
    63 S.W.3d 400
    , 411
    (Tenn. Crim. App. 2001). Enhancement factors may be considered only if they are “appropriate for
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    the offense” and “not already an essential element of the offense.” Tenn. Code Ann. § 40-35-114
    (2006).
    The party challenging the sentence imposed by the trial court has the burden of establishing
    that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2006), Sentencing Commission
    Cmts.; Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the
    sentence imposed by the trial court is erroneous. If our review reflects that the trial court, following
    the statutory sentencing procedure, imposed a lawful sentence, after having given due consideration
    and proper weight to the factors and principles set out under the sentencing law and made findings
    of fact that are adequately supported by the record, then we may not modify the sentence even if we
    would have preferred a different result. State v. Fletcher, 
    805 S.W.2d 785
    , 789 (Tenn. Crim. App.
    1991).
    Initially, we must address the State’s argument that the defendant may not appeal the trial
    court’s application of enhancement and mitigating factors within the statutory range. Prior to 2005,
    Tennessee Code Annotated section 40-35-401(b) read: “An appeal from a sentence may be on one
    (1) or more of the following grounds: (1) The sentence was not imposed in accordance with this
    chapter; or (2) The enhancement and mitigating factors were not weighed properly, and the sentence
    is excessive under the sentencing considerations set out in § 40-35-103.” In 2005, the General
    Assembly deleted clause (2) of subsection 40-35-401(b), amending the subsection as follows: “An
    appeal from a sentence may be on one (1) or more of the following grounds: (1) The sentence was
    not imposed in accordance with this chapter; (2) The sentence is excessive under the sentencing
    considerations set out in §§ 40-35-103 and 40-35-210; or (3) The sentence is inconsistent with the
    purposes of sentencing set out in §§ 40-35-102 and 40-35-103.” The State argues that, with this
    change, the General Assembly intended to abrogate the right of defendants to appeal the trial court’s
    application and weighing of enhancement and mitigating factors.
    This court previously has held that our current sentencing law does not permit defendants to
    appeal the weight afforded to enhancement factors by a trial court. State v. Terrance Patterson, No.
    W2005-01638-CCA-R3-CD, 
    2007 WL 2700160
    , at *10 (Tenn. Crim. App. Sept. 17, 2007) (“The
    fact that the General Assembly deleted the language regarding the weighing of enhancement and
    mitigating factors demonstrates that the General Assembly intended that a defendant may no longer
    allege as grounds for relief on appeal that the sentencing court erroneously weighed sentencing
    enhancement factors.”).
    According to the State, “[t]he defendant may appeal on the ground that the sentence is
    excessive, but he cannot complain about the application of particular enhancement and mitigating
    factors or the weighing of those factors.” Although the defendant’s appellate brief does not
    explicitly claim that his sentence is excessive, it may reasonably be inferred that by challenging the
    trial court’s finding of both enhancement factors, he is in fact arguing that his sentence is too long.
    The defendant and the State agree that the trial court misapplied enhancement factor (3), that
    the offense involved more than one victim. “Tennessee courts have recognized that a person or
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    entity is a ‘victim’ under Tenn. Code Ann. § 40-35-114(3) when that person or entity ‘is injured,
    killed, had property stolen, or had property destroyed by the perpetrator of the crime.” State v.
    Lewis, 
    44 S.W.3d 501
    , 508 (Tenn. 2001) (emphasis in original) (citations omitted). It is
    inappropriate to apply the multiple victims enhancement factor where the indictment charges that
    the offense was committed against a specific, named victim. State v. Imfeld, 
    70 S.W.3d 698
    , 706
    (Tenn. 2002). The indictment to which the defendant pled guilty names only Agent Rhodes as a
    victim. We agree with the defendant and the State that enhancement factor (3) was misapplied.
    The State urges that we reinterpret the trial court’s finding of enhancement factor (3) as a
    finding of enhancement factor (10), that the defendant had no hesitation about committing a crime
    when the risk to human life was high. As we understand it, the State’s argument is that the “court’s
    rationale” for finding that Hines was a victim was that the defendant placed Hines’s life at risk,
    which implies that the court intended to apply factor (10). A fair reading of the record, however,
    does not permit such a construction. We may consider only the record before us and may not
    speculate about any unspoken rationale of the trial court.
    The defendant also alleges that the trial court erred in finding enhancement factor (2), that
    the defendant was a leader in the commission of an offense involving two or more criminal actors.
    The defendant argues that the State did not prove that Cole participated in the offense because no
    evidence was presented that he helped plan the robbery or was even aware that the defendant
    intended it. Cole did not supply the gun and was not present when the robbery took place. The State
    responds that application of this enhancement factor is appropriate because Cole told the defendant
    how to find the victim, drove him to the motel, and waited to drive him away from the scene.
    The trial court discussed extensively its finding that enhancement factor (2) was applicable:
    [N]ow, the proof in this case is pretty clear that the reason that this aggravated
    robbery took place began with a call that was placed by Mr. Eric Hines to a Mr.
    Travont Cole and the original purpose of all of this was to set up a drug buy using
    undercover officers, and Mr. Eric Hines as the confidential informant, and the
    original plan obviously was that Mr. Cole had indicated that he was willing to sell
    drugs to Mr. Eric Hines. I mean, it’s pretty clear from the proof and from the
    statements that that was the original objective in this case. Now, it’s also very
    evident from the facts and from what’s been testified to that rather than Travont Cole
    showing up to perhaps be involved in a drug transaction that what took place was is
    that the defendant, Mr. Eric Charles, along with Mr. Travont Cole drove to this hotel
    and it does appear that the defendant Mr. Charles was driving his father’s car. It does
    appear that once they arrived at the hotel that [the defendant] exited the driver’s side
    of the vehicle. Obviously he’s the one that drove there. When he exited the vehicle,
    obviously he had in his possession, I believe, it was a semiautomatic weapon, it was
    a handgun, which I’ve obviously seen photographs of at the earlier trial – the actual
    weapon as a matter of fact – and of course that was possessed by [the defendant].
    Also, it’s been very clear from the evidence that [the defendant] is the one who left
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    the vehicle then went up the stairway, went up to this room where this supposed drug
    transaction was going to take place and that he went there with the intent to commit
    aggravated robbery.
    It’s very clear even in [the defendant’s] statement, he says, “On the 6th, 2006,
    I took a gun to the Motel 6” which I think is probably an incorrect name for the hotel,
    but he says, “I took a gun to the Motel 6 to rob Eric Hines. I knew he would have
    money.” Now, you know, you have to ask yourself the question: How did he know
    Eric Hines was in that hotel room? Well, the only way that he could have known that
    Eric Hines was in the hotel room is for Mr. Travont Cole to have told [the defendant]
    that that’s where he would be. So clearly the Court finds that there was some
    communication between Mr. Travont Cole and [the defendant] that in some way
    indicated to [the defendant] that Mr. Hines would be in this hotel room with money
    and obviously [the defendant] made a decision to commit aggravated robbery.
    Now, you have to look at the proof too. Mr. Travont Cole went to the
    location with [the defendant]. Mr. Cole was the passenger of the car driven by [the
    defendant]. [The defendant] got out of the vehicle with this gun. After leaving the
    vehicle, Mr. Travont Cole drove the vehicle around to another location there in the
    parking lot and backed the car into the parking lot. Now, it’s pretty evident, I mean,
    common sense will tell you Mr. Travont Cole was there waiting for [the defendant]
    to commit this crime of aggravated robbery. I mean, he was sitting there waiting for
    [the defendant] while [the defendant] went up to the room to commit what [the
    defendant] has already indicated was going to be an aggravated robbery. So, you
    have to decide who is really the leader in the commission of this offense.
    The Court finds in this case that the defendant, Mr. Eric Charles, was a leader
    in the commission of this offense involving two or more criminal actors, and I do
    find that Mr. Travont Cole was a criminal actor. I mean, obviously he’s the one that
    told [the defendant] about where Mr. Hines would be and the fact that Mr. Hines
    would have money. Mr. Cole went with [the defendant] to this location, drove out
    there with him. Mr. Cole waited on [the defendant] to go up and commit the
    aggravated robbery and was waiting to drive him away from the location. So,
    obviously under the circumstances, the Court finds that there were two criminal
    actors involved in this case, [the defendant] and Mr. Travont Cole.
    We conclude that the proof was sufficient for the trial court to find that Cole was a criminal
    actor and that application of factor (2) was appropriate. Cole rode with the defendant to the motel
    where Agent Rhodes and the confidential informant were waiting to purchase drugs from him. After
    the defendant exited the vehicle, Cole drove the car to the other side of the parking lot and waited
    while the defendant robbed Agent Rhodes. Neither of the TBI agents who testified at the sentencing
    hearing had ever come into contact with the defendant prior to the robbery. From these facts, the
    trial court inferred that Cole must have told the defendant where Agent Rhodes was staying and that
    -6-
    he was susceptible to being robbed. The record supports this determination of the trial court. We
    conclude that the court properly applied the multiple criminal actor enhancement factor. If Cole was
    a criminal actor, then the defendant certainly was a leader in the commission of an offense involving
    multiple criminal actors. It is the defendant who procured the gun, went to the motel room, and took
    Agent Rhodes’ property.
    It is apparent from the record that the trial court considered all relevant facts, circumstances,
    and considerations as required by our sentencing law. Although the court misapplied factor (3), the
    offense involved more than one victim, it correctly applied factor (2), the multiple criminal actor
    factor. This court has held that application of a single factor may be sufficient to justify an enhanced
    sentence. State v. Shawn McCobb and Marcus Walker, No. W2006-01517-CCA-R3-CD, 
    2007 WL 2822921
    , at *4 (Tenn. Crim. App. Sept. 26, 2007). Accordingly, we affirm the sentence imposed
    by the trial court.
    CONCLUSION
    For the foregoing reasons, the judgment of the trial court is affirmed.
    ___________________________________
    ALAN E. GLENN, JUDGE
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Document Info

Docket Number: W2007-00060-CCA-R3-CD

Judges: Judge Alan E. Glenn

Filed Date: 1/30/2008

Precedential Status: Precedential

Modified Date: 10/30/2014