State of Tennessee v. Stephen Anthony Scott ( 2010 )


Menu:
  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs February 8, 2005
    STATE OF TENNESSEE v. STEPHEN ANTHONY SCOTT
    Direct Appeal from the Circuit Court for Montgomery County
    No. 40200176    Michael R. Jones, Judge
    No. 2004-00927-CCA-R3-CD - Filed June 7, 2005
    The defendant, Stephen Anthony Scott, appeals as of right from his convictions by jury of aggravated
    robbery, attempted aggravated robbery, especially aggravated kidnapping, two counts of aggravated
    kidnapping, kidnapping, and attempted robbery. Following a sentencing hearing, the defendant was
    classified as a Range I offender and received a ten-year sentence at 30% for aggravated robbery, a
    four-year sentence at 30% for attempted aggravated robbery, a twenty-four year sentence at 100%
    for especially aggravated kidnapping, a ten-year sentence at 100% for both counts of aggravated
    kidnapping, a four-year sentence at 30% for kidnapping, and a four-year sentence at 30% for
    attempted robbery. In this appeal, the defendant argues: (1) the evidence is insufficient to support
    his convictions; and (2) the trial court erred in sentencing. We determine that two of the defendant’s
    convictions should be merged and remand for entry of corrected judgments. In addition, we remand
    for a new sentencing hearing on the defendant’s conviction for aggravated kidnapping. In all other
    respects, we affirm the judgments of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part,
    Reversed in Part, and Case Remanded in Part
    J.C. MCLIN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and NORMA MCGEE
    OGLE, JJ., joined.
    Roger E. Nell, District Public Defender (on appeal), and Russel A. Church, Assistant Public
    Defender (at trial), for the appellant, Stephen Anthony Scott.
    Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; John
    W. Carney, Jr., District Attorney General; and C. Daniel Brollier, Assistant District Attorney
    General, for the appellee, State of Tennessee.
    OPINION
    I. Facts and Procedural History
    On the evening of December 15, 2001, Laurie Goodman and Jason McClain were visiting
    at the home of Jay and Mary Hutchison. At about 11:00 p.m., Goodman and McClain left the
    residence. On his way to take Goodman home, McClain stopped to pick up the defendant to pursue
    a marijuana transaction.
    The defendant directed McClain to drive to an apartment complex where the marijuana was
    supposedly located. Upon arrival, the defendant exited the vehicle and proceeded into the complex
    to retrieve the marijuana. However, he returned with a gun and demanded money from both
    Goodman and McClain. Since the couple could only produce less than ten dollars, the defendant
    became agitated and slapped McClain in the ear with the gun. The defendant then forced McClain
    to drive him to get additional money.
    Unsure of a solution, McClain phoned the Hutchisons and drove back to their home. Jay
    Hutchison walked outside his home to meet McClain. With McClain at gunpoint, the defendant then
    demanded money from Jay Hutchison. However, Hutchison made it back inside his home and told
    his wife to phone the police.
    The defendant then drove away with Goodman and McClain inside the car. Briefly
    thereafter, the defendant slammed on the brakes, demanded the watch and necklace of McClain, and
    ran off, leaving the couple sitting in the car.
    Goodman and McClain returned to the Hutchisons’ residence at roughly the same time the
    police arrived. Hesitant to reveal their involvement in the underlying marijuana transaction,
    Goodman and McClain told police that they did not know the defendant and were just giving him
    a ride.
    At trial, these facts were reflected in the testimonies of Goodman, McClain, and the
    Hutchisons. However, the cross-examination of Goodman and McClain brought out some
    inconsistencies. According to McClain, Goodman made an informed decision to accompany him
    and the defendant to retrieve the drugs. McClain also stated that the defendant first produced the gun
    while inside the vehicle. According to Goodman, she was unaware that she was accompanying
    McClain in a drug transaction and believed that the defendant first showed the gun outside the
    vehicle. In addition, the defense attempted to impeach the testimonies of Goodman and McClain
    by arguing that their initial statements to police were false. According to Detective Ty Burdine of
    the Clarksville Police Department, the victims initially stated that they met the defendant at an
    Amoco, where they stopped to use the restroom.
    McClain responded, “I didn’t want to admit that [a marijuana sale] was what was going on
    because I was afraid of being in trouble.” Goodman testified that she did not come forward with the
    truth earlier because “McClain was all worried about previous things he had done and I didn’t know
    what to do. I was scared.”
    -2-
    The defendant testified that he was the one selling the drugs for McClain and that McClain
    was seeking his money on the evening of December 15, 2001. The defendant denied ever having
    a gun or going to the Hutchison residence that night.
    At the conclusion of the evidence, the jury convicted the defendant of (count one)
    aggravated robbery; (count two) attempted aggravated robbery; (count three) especially aggravated
    kidnapping; (counts four and five) aggravated kidnapping; (count six) kidnapping; and (count seven)
    attempted robbery.
    At the sentencing hearing, the State called Goodman and Megan Solomon to testify.
    Goodman testified that the emotional impact of the crime affects her every day and that she has
    received counseling as a result. Solomon’s testimony related to a similar prior incident involving
    the defendant for which he had not yet been convicted. The trial court stated:
    The Court listened to the testimony of that young lady and, frankly, is unable to
    determine what happened other than [the defendant] again possessed a weapon.
    ....
    I don’t know at all what happened . . . . So, I’m not going to consider that testimony
    as far as sentencing is concerned either as mitigation or as enhancement.
    The trial court applied one enhancement factor to all counts: the defendant was adjudicated
    to have committed a delinquent act as a juvenile that would constitute a felony if committed by an
    adult. As to count seven, the trial court found that the following enhancement factors also applied:
    (1) the defendant possessed or employed a firearm during the commission of the offense; (2) the
    defendant had no hesitation about committing the crime when the risk to human life was high; and
    (3) the crime was committed under circumstances under which the potential for bodily injury to a
    victim was great. The trial court stated:
    The marijuana use [admitted by the defendant in the presentence report] is criminal
    behavior. His testimony to selling would be criminal behavior. Frankly, it would
    have next to no weight with my determinations. So, I’m not going to find that
    number two applies.
    ....
    The proof to me was very clear that [the defendant] did, in fact, possess a
    firearm when he was attempting to rob Mr. Hutchinson [sic]; however, I believe the
    proof was that Mr. Hutchinson [sic] may not have - - it may not have ever been
    pointed at Mr. Hutchinson [sic]; however, [the defendant] did, in fact, have it in his
    possession. So, as to count seven that is an enhancement.
    [The next enhancement factor submitted was that] the defendant had no
    hesitation about committing a crime when the risk to human life was high.
    Aggravated robbery, attempted aggravated robbery, especially aggravated
    kidnapping all, in fact, have a very high risk to human life. This Defendant had no
    -3-
    hesitation about doing this crime, or these crimes; however, I believe that that is part
    of the offense itself as to those counts.
    It would apply to count seven on Mr. Hutchinson [sic]. As to the way it was
    committed even though it was found guilty by the jury of being attempted robbery.
    [The next enhancement factor] the State alleges applies: That the crime was
    committed under circumstances under which the potential for bodily injury to a
    victim was great.
    Again, the Court believes that counts one through six, that all is part of the
    offense. Count seven, which is the attempted robbery of Mr. Hutchinson [sic], the
    Court would find that that would apply as to how this crime was committed, because
    he did, in fact, possess a weapon. So, redundant of number ten. So, ten and 17 really
    would go together.
    . . . On [the enhancement factor regarding] the juvenile conviction for
    aggravated robbery, aggravated assault and aggravated kidnapping, whether this
    would be one offense of aggravated robbery.
    . . . I don’t know when [the defendant] would have been released from the
    custody of the State of Tennessee or Department of Children Services; however, it
    could not have been very long before he committed this offense. . . .
    So, [this enhancement factor] does, in fact, apply, because he did commit and
    was found guilty of committing a delinquent act, which constituted a very, very
    serious felony.
    When sentencing the defendant, the trial court applied one mitigating factor: “under the
    kidnapping statute, [it] says that releasing alive is a mitigating factor for the Court to consider.” The
    trial court applied this mitigating factor only to count three, the especially aggravated kidnapping of
    McClain.
    The trial court then classified the defendant as a Range I offender and sentenced him to a ten-
    year sentence at 30% for the aggravated robbery of McClain, count one; a four-year sentence at 30%
    for the attempted aggravated robbery of Goodman, count two; a twenty-four year sentence at 100%
    for the especially aggravated kidnapping of McClain, count three; a ten-year sentence at 100% for
    the aggravated kidnapping of Goodman, count four; a ten-year sentence at 100% for the aggravated
    kidnapping of McClain, count five; a four-year sentence at 30% for the kidnapping of Goodman,
    count six; and a four-year sentence at 30% for the attempted robbery of Jay Hutchison, count seven.
    The trial court ordered the defendant to serve count four, the aggravated kidnapping of
    Goodman, consecutive to count three, the especially aggravated kidnapping of McClain. The trial
    court also ordered count seven, the attempted robbery of Jay Hutchison, to run consecutively to count
    four. In justifying consecutive sentencing, the trial court stated:
    [W]e look at the presentence report that, basically, just says I’ve never worked; then
    this is, basically, a robbery, get money type deal; the only source of livelihood that
    the Court has seen is from criminal activities.
    -4-
    The other criteria within number one is that he has knowingly devoted such
    defendant’s life to criminal acts. He, certainly, from age 17 or thereabouts has.
    ....
    If we consider the aggravated robbery as a juvenile [the defendant] has a
    criminal record in a short period of time that is extensive.
    ....
    [T]he circumstances surrounding the commission of this offense are especially
    aggravated. Not just aggravated but especially aggravated.
    The prior commitment to the Department of Children Services and then the
    almost immediate, within a year this activity occurred shows to me that confinement
    for an extended period of time is necessary to protect society.
    This Defendant has absolutely no willingness to lead a productive life, and
    the only thing that he has been able to do is to resort to criminal activity, and
    continues to do so.
    ....
    The potential for death or serious bodily injury was very extreme in this
    situation. As I stated, [the defendant] did, in fact, hit Mr. McClain with the weapon,
    holding the weapon right at his head as Ms. Goodman was right there in the front
    seat.
    So, I do believe that there is ample proof to find that this Defendant is a
    dangerous offender; his behavior indicated absolutely no regard for . . . human life;
    and apparently, this was an idea that was not hatched on the spot but drawn out by
    [the defendant].
    The trial court ordered counts one and two to run concurrently with count three.1 Rather than
    merging count five into count three and count six into count four, the trial court entered judgment
    forms showing concurrent sentences. The trial court stated:
    For sentencing purposes counts three and five will merge. In reference to the
    especially aggravated kidnapping of Mr. McClain. So, that those sentences, I believe,
    by law would be required to be concurrent. And, likewise in counts four and count
    six, the aggravated kidnapping in count four and the kidnapping in count six of Ms.
    Goodman.
    After the denial of his motion for new trial, the defendant filed notice of this appeal.
    II. Analysis
    Sufficiency of the Evidence
    1
    This finding is based upon the transcript of the sentencing hearing. Copies of the judgment forms for counts
    one and two are not included in the technical record.
    -5-
    The defendant contends that the evidence is insufficient to support the jury’s verdict. When
    the sufficiency of the convicting evidence is challenged, the relevant question of the reviewing 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); see also Tenn. R. App. P. 13(e) (“Findings of guilt
    in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient
    to support the finding by the trier of fact of guilt beyond a reasonable doubt.”). Questions involving
    the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are
    resolved by the trier of fact. State v. Pappas, 
    754 S.W.2d 620
    , 623 (Tenn. Crim. App. 1987). Once
    a jury finds the defendant guilty, the presumption of innocence with which a defendant is initially
    cloaked is replaced with one of guilt, “so that on appeal a convicted defendant has the burden of
    demonstrating that the evidence is insufficient.” State v. Tuggle, 
    639 S.W.2d 913
    , 914 (Tenn. 1982).
    In contrast, the State, as the prevailing party, is entitled to the strongest legitimate view of the
    evidence and all reasonable inferences which may be drawn from it on appeal. State v. Davidson,
    
    121 S.W.3d 600
    , 614 (Tenn. 2003). The Tennessee Supreme Court has stated the rationale for this
    rule:
    This well-settled rule rests on a sound foundation. The trial judge and the
    jury see the witnesses face to face, hear their testimony and observe their demeanor
    on the stand. Thus the trial judge and jury are the primary instrumentality of justice
    to determine the weight and credibility to be given to the testimony of witnesses. In
    the trial forum alone is there human atmosphere and the totality of the evidence
    cannot be reproduced with a written record in this Court.
    Bolin v. State, 
    405 S.W.2d 768
    , 771 (Tenn. 1966).
    In this appeal, the defendant does not challenge the quantity of proof presented or the proof
    in relation to any elements of the crimes. Rather, he argues that the State’s case centers upon the
    testimony of witnesses who admittedly lied to authorities regarding the facts and whose testimonies
    are so divergent that no rational trier of fact could have accredited them. However, this Court will
    not reweigh the evidence or re-evaluate the credibility of the witnesses. Making these determinations
    would essentially engineer a new trial. Assigning weight to the factual discrepancies in the evidence
    is the function of the trier of fact. Obviously by their verdict, the jury found the testimonies of the
    State’s witnesses credible and discounted any inconsistencies. The trier of fact was in the better
    position to assess the witnesses’ credibility at trial and the defendant’s guilt. Therefore, this issue
    is without merit.
    Sentencing
    The remainder of the defendant’s argument on appeal challenges the trial court’s sentencing
    determinations. The defendant argues that consecutive sentencing is improper and that the trial court
    failed to merge lesser-included offenses. The defendant has also filed a supplemental brief, asking
    -6-
    this Court to consider the impact of Blakely v. Washington, 542 U.S. - - - -, 
    124 S. Ct. 2531
     (2004),
    in regard to his sentences.
    Generally, when a defendant challenges the length, range, or manner of a sentence, this Court
    employs a de novo standard of review with a presumption that the trial court’s determinations are
    correct. 
    Tenn. Code Ann. § 40-35-401
    (d). However, “the presumption of correctness which
    accompanies the trial court’s action 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). If the trial court followed the statutory sentencing
    procedure, made findings of fact that are adequately supported in the record, and gave due
    consideration and proper weight to the principles of the 1989 Sentencing Act, this Court may not
    disturb the sentence even if a different result is preferred. State v. Fletcher, 
    805 S.W.2d 785
    , 789
    (Tenn. Crim. App. 1991). The Sentencing Commission Comments to section 40-35-401 provide that
    the burden on appeal is on the defendant to show that the sentence is improper.
    The record in the instant case reflects that the trial court considered the sentencing principles
    and the relevant underlying facts. Thus, our review is de novo accompanied by the presumption of
    correctness. In conducting our de novo review, this Court considers: (1) the evidence, if any,
    received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) any statement that the
    defendant made in his own behalf, and (7) the potential for rehabilitation or treatment. 
    Tenn. Code Ann. §§ 40-35-102
    , -103, -210; see Ashby, 
    823 S.W.2d at 168
    ; State v. Moss, 
    727 S.W.2d 229
    , 236-
    37 (Tenn. 1986).
    A. Consecutive Sentencing
    The defendant’s initial challenge is to the trial court’s imposition of consecutive sentencing.
    Tennessee Code Annotated section 40-35-115 states that a trial court may order consecutive
    sentencing if it finds by a preponderance of the evidence that the defendant is a professional criminal,
    has an extensive criminal record, is a dangerous mentally abnormal person, is a dangerous offender
    whose behavior indicates little or no regard for human life, is convicted of two or more statutory
    offenses involving sexual abuse of a minor, is sentenced while on probation for a separate offense,
    or is sentenced for criminal contempt. Tennessee Rule of Criminal Procedure 32(c)(1) requires that
    the trial court “specifically recite the reasons” for its imposition of consecutive sentencing.
    In the instant case, the trial court concluded that the defendant had devoted his life to criminal
    activities, that criminal activities were his only source of livelihood, and that the defendant was a
    dangerous offender. We find the record insufficient to support the conclusion that the defendant
    devoted his life to criminal activity and that criminal activity was his only source of livelihood. At
    the time these crimes were committed, the defendant was approximately eighteen years old. No
    proof was presented that the defendant had any criminal history as an adult, any significant assets,
    or an income without legitimate employment to substantiate that income. Cf. State v. Desirey, 909
    -7-
    S.W.2d 20 (Tenn. Crim. App. 1995) (affirming consecutive sentencing upon a showing that the
    defendant made $200,000 per week with no legitimate employment). Therefore, we conclude that
    the record is insufficient to support consecutive sentencing based upon findings that the defendant
    devoted his life to criminal activity as his only source of livelihood.
    The only applicable factor that supports the imposition of consecutive sentences in this case
    is Tennessee Code Annotated section 40-35-115(b)(4), that “[t]he 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.” For dangerous offenders, “consecutive sentences
    cannot be imposed unless the terms reasonably relate to the severity of the offenses committed and
    are necessary in order to protect the public from further serious criminal conduct by the defendant.”
    State v. Wilkerson, 
    905 S.W.2d 933
    , 938 (Tenn. 1995). In the instant case, the trial court considered
    the severity of the crimes and concluded that “commitment for an extended period of time is
    necessary to protect society.” The trial court found that the commission of these crimes was not
    “hatched on the spot” but was drawn out by the defendant and that the defendant accrued an
    extensive criminal history in a very short period of time. In addition, the court considered the
    presentence report which indicated that the defendant had previously been adjudicated as a juvenile
    for similar offenses and prior rehabilitative efforts had been unsuccessful. Affording the trial court
    the presumption of correctness and based upon the foregoing, we affirm the trial court’s imposition
    of consecutive sentencing based upon the fact that the defendant was a dangerous offender.
    B. Merger
    The defendant next argues that the trial court sentenced him for two lesser-included offenses
    that should have been merged. The defendant was sentenced for both the especially aggravated
    kidnapping of McClain, count three, and the aggravated kidnapping of McClain, count five. The
    trial court properly noted that “[f]or sentencing purposes counts three and five will merge.”
    However, the judgment forms do not reflect the merger, but rather reflect separate sentences for each
    count and that count five is to run concurrent with count three. The trial court should have merged
    the lesser-included aggravated kidnapping offense into especially aggravated kidnapping. “Merger
    avoids a double jeopardy problem while protecting the jury’s findings.” State v. Timmy Reagan, No.
    M2002-01472-CCA-R3-CD, 
    2004 WL 1114588
    , at *20 (Tenn. Crim. App., at Nashville, May 19,
    2004). “[N]either two sentences nor separate judgments of conviction should [be] entered, and the
    one judgment of conviction should reflect the merger.” 
    Id.
    Similarly, the trial court ordered the sentence for kidnapping Goodman, count six, to run
    concurrently with the sentence for her aggravated kidnapping, count four. These two counts should
    have been merged.
    Accordingly, we conclude that the sentences for counts five and six should be vacated as they
    are lesser-included offenses that must be merged into counts three and four.
    C. Sentence Enhancement and Mitigation
    -8-
    The remainder of the defendant’s argument on appeal challenges the trial court’s application
    of enhancement factors and failure to find sentence mitigation. Engulfed in the defendant’s
    argument is the assertion that, in light of Blakely, the trial court violated his Sixth amendment right
    to trial by jury by applying enhancement factors not admitted or found by a jury.
    Our 1989 Sentencing Act provides that, procedurally, the trial court is to increase a sentence
    within a given proscribed range based upon the existence of certain enhancement factors and then
    reduce the sentence as appropriate for any mitigating factors. See 
    Tenn. Code Ann. § 40-35-210
    (d),
    (e). The weight to be afforded an existing factor is left to the discretion of the trial court so long as
    it complies with the purposes and principles of the 1989 Sentencing Act and the trial court’s findings
    are adequately supported by the record. See 
    Tenn. Code Ann. § 40-35-210
    , Sentencing Comm’n
    Cmts.; Moss, 
    727 S.W.2d at 238
    ; see also Ashby, 
    823 S.W.2d at 169
    .
    The record indicates that the trial court applied enhancement factor (21), that the defendant
    was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a
    felony if committed by an adult, to all counts. See 
    Tenn. Code Ann. § 40-35-114
    (21). As to count
    seven, the trial court applied enhancement factor (10), the defendant employed a firearm; (17), the
    crime was committed under circumstances under which the potential for bodily injury was great; and
    (11), that the defendant had no hesitation about committing a crime when the risk to human life was
    high. 
    Id.
     at § 40-35-114(10), (17), and (11). Based upon the presentence report, the record as a
    whole, and the nature of the offenses in this case, we conclude that the trial court’s application of
    these enhancement factors was adequately supported by the record.
    The defendant’s argues that Blakely mandates the modification of his sentences. The State
    argues that the defendant has waived any Blakely issues for failure to present the argument at trial
    or in his motion for new trial. We agree. In the recent decision State v. Gomez, - - - S.W.3d - - - -,
    No. M2002-01209-SC-R11-CD (Tenn. April 15, 2005), the Tennessee Supreme Court announced
    that Tennessee’s sentencing structure does not violate the Sixth Amendment. Id. at - - - -. The court
    also determined that Blakely did not establish a new rule of law. Id. at - - - -. As such, the
    defendant, who has failed to assert this issue prior to appeal, has effectively waived the issue.
    Furthermore, the Gomez court concluded that a Tennessee trial judge’s discretionary application of
    sentence enhancement factors absent an admission or jury finding does not amount to plain error.
    Id. at - - - -. In accordance with this reasoning, we determine the defendant’s Blakely argument to
    be without merit.
    When sentencing the defendant, the trial court applied one mitigating factor: “under the
    kidnapping statute, [it] says that releasing alive is a mitigating factor for the Court to consider.”
    Tennessee Code Annotated section 39-13-305(b)(2) states, “If the offender voluntarily releases the
    victim alive or voluntarily provides information leading to the victim’s safe release, such actions
    shall be considered by the court as a mitigating factor at the time of sentencing.” The trial court
    applied this mitigating factor only to count three, the especially aggravated kidnapping of McClain.
    However, Tennessee Code Annotated section 39-13-304(b)(2) affords this same mitigating factor
    -9-
    to aggravated kidnapping. Therefore, we remand count four, the aggravated kidnapping of
    Goodman, for resentencing to account for this mitigating factor.
    III. Conclusion
    Based upon the foregoing and the record, we determine the evidence sufficient to affirm the
    judgments of convictions and the record sufficient to support the defendant’s sentences. However,
    we conclude that count five must merge into count three and that count six must merge into count
    four. Accordingly, we remand for entry of corrected judgments. In addition, we remand count four
    for a new sentencing hearing to account for a mitigating factor absent from the trial court’s initial
    finding.
    ___________________________________
    J.C. McLIN, JUDGE
    -10-