State v. Carla Marie Parrish ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
DECEMBER 1998 SESSION
March 30,1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9801-CR-00017
Appellee, )
) DAVIDSON COUNTY
VS. )
) HON. CHERYL BLACKBURN,
CARLA MARIE PARRISH, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
KARL DEAN JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
JEFFREY A. DeVASHER DARYL J. BRAND
Asst. Public Defender Asst. Attorney General
(On Appeal) Cordell Hull Bldg., 2nd Fl.
425 Fifth Ave., North
RICHARD TENNENT Nashville, TN 37243-0493
Asst. Public Defender
1202 Stahlman Bldg. VICTOR S. JOHNSON, III
211 Union St. District Attorney General
Nashville, TN 37201
(At Hearing) SHARON BROX
Asst. District Attorney General
Washington Square, Suite 500
222 Second Ave., North
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
On September 29, 1997, the defendant pled guilty, pursuant to a plea
agreement, to two counts of simple robbery. At the subsequent sentencing hearing, the
trial court applied five statutory enhancement factors but found no applicable mitigating
factors. The trial court then sentenced the defendant as a Range II multiple offender to
a term of ten years on each count to run concurrently.
The defendant now appeals and challenges the length of her sentence.
The defendant contends that the trial court erroneously applied enhancing factors T.C.A.
§ 40-35-114(1), that the defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the appropriate range; (3),
that the offense involved more than one victim; (9), that the defendant possessed a
deadly weapon during the commission of the offense; (10), that the defendant had no
hesitation about committing a crime when the risk to human life was high; and (16), that
the crime was committed under circumstances for which the potential for bodily injury to
a victim was great.
The defendant’s convictions stemmed from two incidents that occurred in
the early morning hours of December 18, 1996. The defendant entered a Subway
restaurant and ordered a sandwich. After an employee entered the order into the register
and told the defendant the price, the defendant told the employee to give her all the
money in the register and pulled out a knife. The defendant then grabbed the employee
and swung the knife at him. Another employee, who had been talking on the phone in
the back room, heard the commotion and turned around in time to witness the incident.
The employee at the register was yelling for his co-worker’s help but the co-worker “didn’t
know what to do, because [he] hadn’t ever been through this before.” At this point, the
defendant grabbed the register and repeatedly smashed it against the floor until it
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opened. The defendant took the money from the register and exited the store.
Later that morning, the defendant entered a Circle K convenience store.
After filling out a job application, the defendant approached the register to purchase a
small item. When the clerk rang up the order, the defendant grabbed the clerk,
threatened the clerk with a weapon,1 reached for the register, and tried to pull it off the
counter. A struggle ensued between the defendant and the clerk. The manager heard
the clerk scream, went behind the counter, and tried to pull the register away from the
defendant. The defendant ultimately was able to pull the register off of the counter and
throw it to the ground. The register opened after the defendant dropped it on the floor
several times. The defendant then took the money from the register and left the store.
However, the manager of the store and a customer followed the defendant outside. The
defendant turned around and threatened the customer with a piece of wood. The
defendant was subsequently arrested when the police arrived on the scene and found
her in a nearby residence.
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).
The Sentencing Reform Act of 1989 established a number of specific
procedures to be followed in sentencing. This section mandates the court’s consideration
1
The store clerk believed the weapon was an ice pick.
3
of the following:
(1) The evidence, if any, received at the trial and the sentencing
hearing; (2) [t]he presentence report; (3) [t]he principles of sent-
encing and arguments as to sentencing alternatives; (4) [t]he
nature and characteristics of the criminal conduct involved; (5)
[e]vidence and information offered by the parties on the enhance-
ment and mitigating factors in §§ 40-35-113 and 40-35-114; and
(6) [a]ny statement the defendant wishes to make in his own be-
half about sentencing.
T.C.A. § 40-35-210.
In addition, this section provides that the minimum sentence within the
range is the presumptive sentence. If there are enhancing and mitigating factors, the
court must start at the minimum sentence in the range and enhance the sentence as
appropriate for the enhancement factors and then reduce the sentence within the range
as appropriate for the mitigating factors. If there are no mitigating factors, the court may
set the sentence above the minimum in that range but still within the range. The weight
to be given to each factor is left to the discretion of the trial judge and is accorded a
presumption of correctness unless the trial court applies inappropriate factors or
otherwise fails to follow the purposes and principles of the 1989 Sentencing Act. State
v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
The defendant first challenges the trial court’s application of enhancing
factor (1), that the defendant has a previous history of criminal convictions or behavior.
The defendant argues that although she was adjudicated delinquent as a juvenile for
joyriding and she has an admitted history of drug abuse, there was insufficient evidence
to constitute a history of criminal convictions or criminal behavior. The defendant’s
juvenile record consists of one count of joyriding, a Class A misdemeanor if committed
by an adult. T.C.A. § 39-14-106. As such, we agree that the defendant’s juvenile record
was not a sufficient basis upon which to apply this enhancement factor. See State v.
Brent Brown, No. 02C01-9710-CC-00419, Hardeman County (Tenn. Crim. App. filed
4
October 26, 1998, at Jackson). However, the defendant’s drug use as an adult is
evidence of a history of criminal behavior. See State v. Alexander, 957 S.W.2d 1, 7
(Tenn. Crim. App. 1997). As such, this enhancement factor was properly applied.
The defendant next contends that the trial court erred in finding that the
offenses in this case involved more than one victim. The defendant contends that there
was only one victim in each robbery, the employee attending the cash register. This
Court has held that the term “victim” as used in T.C.A. § 40-35-114(3) “is limited in scope
to a person or entity that is injured, killed, had property stolen, or had property destroyed
by the perpetrator of the crime.” State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App.
1994). This Court has further held that the term “injury” encompasses not only physical
bodily injury, but emotional injuries and psychological scarring as well. State v. Michael
Wilson, No. 01C01-9602-CC-00073, Putnam County (Tenn. Crim. App. filed July 31,
1997, at Nashville); see also State v. Kenneth W. Ervin, No. 03C01-9707-CC-00311,
Blount County (Tenn. Crim. App. filed October 2, 1998, at Knoxville).
In the case at bar, the defendant entered a Subway restaurant, pulled out
a knife, swung it at one of the employees, and threw the register on the ground until it
opened. Although the knife barely missed the employee’s face and chest, it did cut his
hand such that he had to have a tetanus shot. In addition, the employee in the back
room testified that he was frightened by the incident. In fact, he could not even attempt
to render assistance to the other employee who was yelling for his help. Both employees
testified that they would probably never work in a restaurant again as a result of this
incident. As such, it seems clear that both Subway employees were emotionally injured,
and one was physically injured, during this robbery. Therefore, there were two victims
within the realm of risk or danger in the Subway robbery and enhancement factor (3) was
properly applied to enhance the sentence in the count pertaining to that robbery.
5
In the robbery of the Circle K convenience store, the defendant threatened
the clerk with some type of weapon, grabbed her, ripped her shirt, and tried to pull the
register away from her. As the two women struggled, the manager, who testified she
was very scared throughout the robbery, attempted to assist the clerk, but the defendant
managed to pull the register to the floor. The defendant then left the store with the
money as the clerk behind the register continued to cry and scream. The manager and
a customer followed the defendant out of the store. After realizing she was being
followed, the defendant threatened the customer with a piece of wood. As a result of this
incident, the “terrified” clerk left work that night and never returned. It is clear that more
than one person was emotionally injured during this robbery. In fact, the manager and
the clerk both physically struggled with the defendant in an attempt to retain control over
the register. As such, at least two, if not three, people within the realm of risk of danger
were injured during the course of this robbery. Therefore, enhancement factor (3) was
properly applied to enhance the count pertaining to the Circle K robbery.
The defendant also contends that the trial court erred in applying
enhancement factor (9), that the defendant possessed or employed a deadly weapon
during the commission of the offense, with regard to the robbery of the Circle K
convenience store.2 The defendant argues that she was not in possession of a weapon
during that robbery and the evidence indicating otherwise was insufficient to support the
application of this enhancement factor. However, T.C.A. § 40-35-210 mandates that a
court consider all the evidence received at trial when sentencing a defendant. The
manager of the Circle K convenience store testified that the clerk reported the defendant
was carrying a weapon. This Court has held,
The trial court, as the trier of fact at sentencing hearings, has
the opportunity to observe the manner and the demeanor of
the witnesses. Consequently, this Court gives great weight to
the determinations made by the trial court concerning the cred-
2
The defendant concedes that this enhancement factor was properly applied with regard to the
robbery o f the Sub way resta urant.
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ibility of the witnesses; and this Court will not interfere with the
trial court’s findings of fact in this regard unless the evidence
contained in the record clearly preponderates against these
findings.
State v. Melvin, 913 S.W.2d 195, 202 (Tenn. Crim. App. 1995) (citing Raines, 882
S.W.2d at 383). As it was within the province of the trial court to decide the credibility of
witnesses at the sentencing hearing, we find the trial judge did not abuse her discretion
by crediting the testimony of the manager and the accuracy of her report over the
testimony of the defendant. Additionally, the defendant has failed to offer any evidence
that would preponderate against the trial court’s findings.3 As such, application of
enhancement factor (9) was proper.
The defendant next contends that the trial court erred in applying T.C.A. §
40-35-114(10), that she had no hesitation about committing a crime when the risk to
human life was high, and (16), that the crime was committed under circumstances for
which the potential for bodily injury to a victim was great.4 The Tennessee Supreme
Court recently held that
enhancement factors (10) and (16), are not, as a matter of law,
essential elements of the offense of robbery, and may be properly
utilized when imposing a sentence for robbery so long as the facts
which establish the elements of the offense are not also relied upon
to establish the enhancement factors. This determination is depen-
dent upon the particular facts of each case.
State v. Lavender, 967 S.W.2d 803, 809 (Tenn. 1998). The Supreme Court further
stated that “[i]n determining whether a particular enhancement factor may be applied in
3
The defendan t asserts that the videotape of the Circle K convenience store robbe ry
corr obo rates her te stim ony be cau se it d oes not s how the d efen dan t with a wea pon . This ass ertion is
incorrect. The videotape, due to the camera’s location, is inconclusive as to whether the defendant
threatened the clerk with a weapon.
4
We note that the case law relied upon by the defendant with regard to enhancement factor
(10) is not applicable to the case at bar. None of the cases cited by the defendant address the crime of
robbery with respect to this enhancement factor. Although these cases hold that this enhancement
factor is not applicable unless people other than the victim are put in danger, the reasoning of these
cas es is b ase d on t he fa ct tha t this e nha nce me nt fac tor is a n ess entia l elem ent o f the c rim e. As that is
not the ca se with reg ard to the c rime o f robber y, these ca ses are inappos ite here. See State v. Hicks,
868 S.W .2d 729, 7 32 (Te nn. Crim . App. 199 3); State v. Calvin Wayne Suggs, No. 01C01-9411-CC-
00390, Dickson County (Tenn. Crim. App. filed October 10, 1996, at Nashville perm. app. denied March
10, 1997 ); State v. Gregory Maurice Brooks, No. 0 2C0 1-94 11-C V-00 261 , Mad ison Cou nty (T enn . Crim .
App. filed July 19, 1995, at Jackson).
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a specific case, the trial court must consider the elements of the offense and the
evidence adduced at the trial and sentencing hearing.” Id. at 807.
Robbery is defined as “the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” T.C.A. § 39-13-401(a).
“Theft” of property occurs when a person “with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s
effective consent.” T.C.A. § 39-14-103. In the case at bar, the evidence shows that the
defendant, in both robberies, placed the employee at the register in fear by exhibiting a
weapon. The defendant then reached for the register, took control of the store’s property,
and left the premises without consent. These facts support the elements of the offense
of robbery.
In the case of the Subway robbery, in addition to robbing the store, the
defendant pulled out a knife with a ten-inch blade and swung it at an employee, narrowly
missing his face and chest. If the defendant had cut the employee with this knife, the
chance that he could have suffered serious injuries was certainly high. These
circumstances support the application of enhancement factor (10) with regard to the
Subway restaurant robbery. As for the Circle K convenience store robbery, the defendant
not only robbed the store but also pointed an ice pick at the clerk while grabbing her shirt
and trying to pull her closer to the counter. The defendant then struggled with her and
the manager to obtain control over the register. The defendant’s actions certainly created
a high risk that the clerk behind the register could have been stabbed and killed. The
facts of these cases support the trial court’s conclusion that the defendant had no
hesitation about committing a crime when the risk to human life was high. T.C.A. § 40-
35-114(10).
In regard to enhancement factor (16), the Tennessee Supreme Court has
8
found this factor applicable in robbery cases as long as the facts supporting its
application are not the same facts used to establish the elements of the offense.
Lavender, 967 S.W.2d at 809. As stated earlier, all of the elements of robbery were
clearly met. Furthermore, the proof showed that the defendant swung a knife at one of
the Subway employees, pointed a weapon at the clerk in the Circle K store, threatened
a customer outside the Circle K store with a piece of wood, and repeatedly smashed a
somewhat heavy cash register on the floor while others were in the vicinity. These
circumstances support the trial court’s conclusion that the crime was committed under
circumstances for which the potential for bodily injury to a victim was great. T.C.A. § 40-
35-114(16).
In sum, the trial court properly applied enhancement factors (1), (3), (9),
(10), and (16) to both robbery convictions. In light of the foregoing applicable
enhancement factors and the lack of applicable mitigating factors, we find that the trial
court did not err in sentencing the defendant to the maximum sentence within the range.
Accordingly, we affirm the judgment of the court below.
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOSEPH M. TIPTON, Judge
______________________________
NORMA McGEE OGLE, Judge
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