State v. Johnnie Talley ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
December 30, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9710-CC-00450
Appellee, )
) WILLIAMSON COUNTY
VS. )
) HON. HENRY DENMARK BELL,
JOHNNIE M. TALLEY III, ) JUDGE
)
Appellant. ) (Filing False Report - 5 Counts;
) Probation Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN H. HENDERSON JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
407 C Main Street
P.O. Box 68 DARYL J. BRAND
Franklin, TN 37065-0068 Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
JOSEPH D. BAUGH, JR.
District Attorney General
DEREK K. SMITH
Assistant District Attorney General
G-6 Courthouse
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED:
AFFIRMED
L.T. LAFFERTY,
SENIOR JUDGE
OPINION
Defendant was found guilty of five counts of filing a false report in violation
of Tenn. Code Ann. § 39-16-502(a)(2)(A), all Class E felonies. The trial court
sentenced defendant as a Range II, multiple offender, to four years in counts one
and three, and three years in counts four, six, and eight. Counts one and three ran
consecutively and the other counts ran concurrently for an effective eight-year
sentence. The court also revoked defendant’s probation on a three-year sentence,
but ordered that time served concurrently with the new sentence. Defendant
essentially raises three issues on appeal:
(1) whether the evidence was sufficient to support the
five guilty verdicts;
(2) whether the trial court erred in sentencing
defendant; and
(3) whether the trial court erred in revoking defendant’s
probation and ordering him to serve the three-year
effective sentence.
After a thorough review of the record, we AFFIRM the judgments of conviction and
sentences imposed by the trial court.
FACTS
Defendant is a life-long Williamson County resident with a history of making
9-1-1 emergency calls and requesting assistance. In December of 1996, a
Williamson Grand Jury indicted him on nine counts of filing a false report for a
series of these incidents. After a bench trial, the court found defendant guilty on five
counts of filing a false report, Class E felonies.
On January 14, June 13, July 1, August 2, and September 8, 1996,
defendant placed the 9-1-1 calls giving rise to his convictions. In each case, he
claimed injury or a need for assistance. Some of the ailments claimed by defendant
included: bleeding from the head; spider bite; heatstroke; back, neck, and chest
pains. In each instance, the emergency medical personnel found defendant in no
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distress and in no need of emergency medical treatment. Per agency policy,
however, they transported defendant to the Williamson Medical Center emergency
room at his request.
In the majority of these visits, emergency room medical records indicate a
final diagnosis of toluene inhalation, substance abuse and/or a history of
schizophrenia. On July 1, the diagnosis was insomnia.
The defense presented expert testimony by Robert N. North, D.Ed., who
testified that defendant suffers from Obsessive Compulsive Disorder (OCD). His
evaluation of defendant indicated that defendant may have known “down deep” that
there was nothing wrong, but that he was driven by a compulsion to call 9-1-1 and
could not help himself. This proof was deemed inadmissible at the guilt phase of
the hearing, but was considered for sentencing purposes. 1
SUFFICIENCY OF THE EVIDENCE
The defendant asserts that “the evidence in the case, taken in the light most
favorable to the State, did not establish [defendant’s guilt] beyond a reasonable
doubt.”
When reviewing the trial court's judgment, this Court will not disturb a verdict
of guilt unless the facts of the record and inferences which may be drawn from it are
insufficient as a matter of law for a rational trier of fact to find the defendant guilty
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781,
2789, 61 L. Ed. 2d 560, 573 (1979); Tenn. R. App. P. 13(e); State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence, this
Court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn.1978). Nor may this Court substitute its inferences for those drawn
by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298,
305, 286 S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford
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The correctness of this ruling is not raised as an issue in this appeal.
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the state the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the
evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.1995). Since a
verdict of guilt removes the presumption of a defendant's innocence and replaces
it with a presumption of guilt, the defendant has the burden of proof on the
sufficiency of the evidence at the appellate level. State v. Tuggle, 639 S.W.2d at
914; State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
The trial judge heard the evidence, evaluated the witnesses, and
made its factual determinations based on that evidence. This Court cannot
substitute its judgment for that of the trial judge in determining sufficiency of the
evidence. Viewing the evidence in a light most favorable to the state, there is
sufficient evidence to sustain all five findings of guilt.
This issue is without merit.
SENTENCING
Defendant makes no specific assignments of error by the trial judge in his
sentencing decisions. He simply asserts that the effective eight-year sentence is
excessive and asks this court to amend the sentences to two years each and place
defendant on probation for that period.
Our review of the sentence imposed by the trial court is de novo, with a
presumption that the determinations of the trial court are correct. Tenn. Code Ann.
§ 40-35-401(d); State v. Byrd, 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The
presumption of correctness which attaches to the trial court's action is conditioned
upon an 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).
A review of the videotaped bench trial and sentencing hearing convinces us
that the trial court did consider the sentencing principles and all relevant facts and
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circumstances surrounding this case. Thus, our review is de novo with the attached
presumption of correctness.
A. Length of Sentences
The trial court sentenced defendant as a Range II, multiple offender to four
years each in counts one and three, and three years each in counts four, six and
eight. Defendant does not claim any error with regard to the sentencing range, but
merely asserts that the sentence in each count should be no more than the
minimum for a Range II offender, two years.
If no mitigating or enhancement factors for sentencing are present, Tenn.
Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the
minimum sentence within the applicable range. See State v. Lavender, 967 S.W.2d
803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App.
1991). However, if such factors do exist, a trial court should start at the minimum
sentence, use the enhancement factors to increase the sentence within the range
and then apply the mitigating factors to reduce the sentence within the range.
Tenn. Code Ann. § 40-35-210(e). There is no particular weight prescribed by
statute for each factor, as this determination is left to the discretion of the trial court
as long as the trial court complies with the purposes and principles of the
sentencing act and its findings are supported by the record. State v. Moss, 727
S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim.
App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see
State v. Lavender, 967 S.W.2d at 806.
At sentencing, defendant asked for the application of five mitigating factors:
(1) defendant’s criminal conduct neither caused nor threatened serious bodily injury;
(2) substantial grounds exist tending to excuse or justify the defendant’s criminal
conduct, though failing to establish a defense; (3) defendant was suffering from a
mental . . . condition that significantly reduced [his] culpability for the offense; (4)
with treatment and medication, defendant has a good potential for rehabilitation;
and (5) defendant is currently receiving treatment and taking medication for mental
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health problems. See Tenn. Code Ann. § 40-35-113(1), (3), (8), (13).
The state asked for the application of three enhancing factors: (1) defendant
has a previous history of criminal convictions or criminal behavior in addition to
those necessary to establish the appropriate range; (2) defendant has a previous
history of unwillingness to comply with the conditions of a sentence involving
release in the community; and (3) these felonies were committed while defendant
was on probation. See Tenn. Code Ann. § 40-35-114(1), (8), (13)(C). The
prosecutor recommended an effective eleven-year sentence and emphasized the
length and nature of defendant’s criminal history. The record reflects defendant’s
conduct included thirty-three prior convictions, five felonies and twenty-eight
misdemeanors; and at least one prior probation revocation which resulted in
defendant being forced to serve the remainder of a suspended sentence.
The trial court noted that both sides presented valid arguments for the
application of the requested mitigation and enhancement factors. It also considered
the sentencing recommendations of both defense counsel and the state. The trial
court made a specific finding that the enhancement factors “greatly outweigh” the
mitigating factors and then sentenced defendant to two maximum sentences of four
years and three mid-range sentences of three years.
In reviewing the record de novo with the attached presumption of
correctness, this Court finds that the trial court properly applied both enhancement
and mitigating factors. It also properly evaluated the relevant facts and
circumstances of the case in conjunction with the sentencing principles.
Accordingly, this Court will not disturb the length of the sentences.
B. Consecutive Sentencing
Defendant next avers that the trial court erred in ordering the four-year
sentences in counts one and three to run consecutively to one another.
A court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that the defendant is an offender whose record of
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criminal activity is extensive, or the defendant is sentenced for an offense
committed while on probation. Tenn. Code Ann. § 40-35-115(b)(2),(6); see also
State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Furthermore, the
court is required to determine whether the consecutive sentences (1) are
reasonably related to the severity of the offenses committed; (2) serve to protect the
public from further criminal conduct by the offender; and (3) are congruent with the
general principles of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn.
1995).
Here, the trial court noted that defendant qualified for consecutive sentencing
under the statute given his extensive criminal history spanning almost ten years and
that he was on probation when he committed the current felonies. As such, it found
consecutive four-year sentences warranted in counts one and three.
The court addressed the Wilkerson considerations noting the danger posed
to the community by defendant’s chronic engagement of the county’s emergency
services and personnel for non-emergency purposes. It found the eight-year
sentence sufficient and ordered all other sentences, including three years for the
new probation violation, to run concurrently. This finding clearly indicates the trial
court’s belief that an eight-year sentence is reasonably related to the severity of the
offenses at issue.
Again, our review of the record with the attached presumption of correctness
reveals that the trial judge based consecutive sentencing upon proper
considerations. Thus, we will not disturb his decision.
C. Alternative Sentencing
Defendant claims that the trial court erred in denying him “intensive”
probation. Defense counsel argued at sentencing that defendant was an ideal
candidate for probation; that neither the Department of Correction nor the county
jail is an appropriate facility to handle defendant’s special needs; and the trial court
should place him on “intensive” probation.
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In determining whether to grant or deny probation, a trial court should
consider the circumstances of the offense, the defendant’s criminal record, the
defendant’s social history and present condition, the need for deterrence, and the
best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State
v. Black, 924 S.W.2d at 917. The burden is upon the appealing party to show that
the sentence is improper. Tenn. Code Ann. § 40-35-401(d). Sentencing
Commission Comments.
Under the 1989 Sentencing Act, sentences which involve confinement
are to be based on the following considerations contained in Tenn. Code Ann. § 40-
35-103(1):
(A) [c]onfinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
(B) [c]onfinement is necessary to avoid depreciating the seriousness
of the offense or confinement is particularly suited to provide an effect
deterrence to others likely to commit similar offenses; or
(C) [m]easures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.
See State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v.
Millsaps, 920 S.W.2d 267, 271 (Tenn. Crim. App. 1995).
We first note that defendant, due to his uncontroverted Range II status, is not
presumed to be a favorable candidate for alternative sentencing. Tenn. Code Ann.
§ 40-35-102(6). Our review further reveals that the trial court addressed the proper
confinement considerations. The defendant clearly qualifies for a sentence of
confinement. Thus, there is no basis for us to disturb the trial court’s denial of
alternative sentencing.
PROBATION REVOCATION
Revocation of probation is subject to an abuse of discretion standard of
review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
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1991). Discretion is abused only if the record contains no substantial evidence to
support the conclusion of the trial court that a violation of probation has occurred.
Id.
In this case, there was clear evidence that defendant violated his probation.
There was no abuse of discretion by the trial court in revoking the defendant’s
suspended sentence. We would note that the sentence in that case, an effective
three years, was run concurrently with his new convictions.
This issue is without merit.
CONCLUSION
Based upon the foregoing, we AFFIRM the judgments of the trial court.
____________________________
L.T. LAFFERTY, SENIOR JUDGE
CONCUR:
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___________________________
PAUL G. SUMMERS, JUDGE
____________________________
JOE G. RILEY, JUDGE
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