State of Tennessee v. Kevin McDougle ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 2, 2010
STATE OF TENNESSEE v. KEVIN MCDOUGLE
Direct Appeal from the Criminal Court for Shelby County
No. 06-04208 W. Mark Ward, Judge
No. W2009-01648-CCA-R3-CD - Filed June 11, 2010
The defendant, Kevin McDougle, was convicted by a Shelby County jury of aggravated
robbery, a Class B felony, and two counts of aggravated assault, a Class C felony. He was
subsequently sentenced to consecutive sentences of twelve years for the robbery and six years
for each assault, resulting in an effective sentence of twenty-four years in the Department of
Correction. On appeal, the defendant challenges only the imposition of consecutive
sentences, specifically contending that the court erred in relying upon his juvenile record to
establish that he was an offender whose record of criminal activity was extensive. Following
review of the record, we find no error and affirm the sentences as imposed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and A LAN E. G LENN, J., joined.
Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Kevin McDougle.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Colin Campbell, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
On October 20, 2005, at approximately 5:30 p.m., the defendant entered Wing
Grocery in Memphis and held multiple parties at gunpoint while robbing the store. The
owner of the store, Mrs. Yu Hun Huang, was at the register working as a cashier, while her
daughter-in-law, Li Yuan Weng, was assisting her. The defendant entered the store and
proceeded to select several items, passing in front of the surveillance camera multiple times.
At some point, he approached the register and pulled out his gun. Mrs. Weng then ran to the
back of the store and alerted her husband, Duffy Lam. Mr. Lam came toward the front of the
store and witnessed the defendant choking his mother, Mrs. Huang, while pointing a gun at
her neck and demanding money. The defendant left the store after taking $100 in cash and
some cigarettes.
After the defendant left, the victims called the police, and Officer Willard Tate arrived
and proceeded to view the surveillance video. Officer Tate also observed that the victims
of the crime were very upset and afraid. He recognized the defendant from the videotape as
someone he had seen in his ward. Subsequently, Mrs. Weng and Mr. Lam identified the
defendant from a photographic lineup as the perpetrator of the crime. Mrs. Huang was
unable to make a positive identification. The defendant denied that he was responsible for
the crimes.
Based upon the foregoing actions, the defendant was indicted by a Shelby County
grand jury for aggravated robbery and two counts of aggravated assault. Following a jury
trial, he was convicted as charged. At the sentencing hearing, the defendant took the stand
and testified that he believed he should receive a short sentence because he was not guilty
of the crimes. He also testified that he was placed in special education classes as a child,
based upon his difficulties in learning and paying attention. He also stated that he had been
sent to a counselor because he was “retarded.” The State presented no witnesses, choosing
to rely upon the defendant’s presentence report. The report, which was not challenged,
indicated that the twenty-five-year-old defendant had multiple prior convictions.
Specifically, the defendant had prior felony convictions for aggravated burglary, felon in
possession of a weapon, aggravated assault, and three counts of aggravated robbery. He also
had prior misdemeanor convictions for three counts of vandalism, two counts of assault, and
a weapons offense. Further, the report indicated an extensive juvenile history, beginning at
age eleven. That history is as follows:
October 26, 1995: Age 11. The defendant was convicted of burglary of a
building and evading arrest. He was referred to the Department of Human
Services;
January 25, 1997: Age 13. Criminal trespassing, vandalism under $500, and
disorderly conduct. He was warned, counseled, and released to his mother;
July 7, 1997: Age 13. Aggravated burglary. He was placed at Tall Trees, a
juvenile community residential facility in Memphis;
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July 24, 1997: Age 13. Aggravated burglary. He was again placed at Tall
Trees;
August 13, 1998: Age 14. Criminal trespassing and disorderly conduct. He
was warned, counseled, and referred to a community service program;
August 31, 1998: Age 14. Criminal trespassing. He was warned, counseled,
and referred to a community service program;
September 18, 1998: Age 14. Robbery, possession of cocaine. The robbery
charge amended to theft less that $500 and sustained as amended; the cocaine
charge was dismissed without prejudice; and he was placed at the Shelby
Training Center;
September 26, 1998: Age 14. Criminal trespassing. He was warned,
counseled, and referred to a community service program;
March 4, 1999: Age 15. Assault. He was placed at a youth rehabilitation
center;
September 14, 1999: Age 15. Escape from Department of Children’s Services
(“DCS”) custody. No petition was filed;
June 4, 2000: Age 16. Escape from DCS custody. No petition was filed;
January 29, 2001: Age 17. Escape from DCS custody, burglary of a building,
and theft of a vehicle. He remained in DCS corrective custody.
After hearing the evidence presented, the trial court sentenced the defendant to twelve years
for the aggravated robbery and to six years for each aggravated assault. Additionally, based
upon its finding that the defendant had an extensive criminal history, the court ordered that
the sentences be served consecutively for an effective twenty-four-year sentence. Moreover,
the court further ordered that the sentence be served consecutively to sentences received in
two separate cases.
Analysis
On appeal, the defendant’s sole contention is that the trial court erred in imposing
consecutive sentencing. On appeal, the party challenging the sentence imposed by the trial
court has the burden of establishing that the sentence is erroneous. T.C.A. § 40-35-401
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(2006), Sentencing Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn.
2001). When a defendant 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. T.C.A. §
40-35-401(d). However, 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also State v.
Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial court
failed to consider the sentencing principles and all relevant facts and circumstances, then
review of the challenged sentence is purely de novo without the presumption of correctness.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d at 344-45.
In conducting a de novo review of a sentence, this court must consider: (a) the evidence
adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the principles
of sentencing and argument as to the sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the mitigating and enhancement factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee’s sentencing practices for similar
offenses; and (g) any statement the defendant wishes to make in his own behalf about
sentencing. T.C.A. § 40-35-210(b) (2006); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).
A trial court may impose consecutive sentencing upon a determination that one or
more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b) exists. State
v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997). As relevant here, this section
permits the trial court to impose consecutive sentences if the court finds that “[t]he defendant
is an offender whose record of criminal activity is extensive.” T.C.A. § 40-35-115(b)(2)
(2006). The length of the sentence, when consecutive in nature, must be “justly deserved in
relation to the seriousness of the offense” and “no greater than that deserved” under the
circumstances. T.C.A. § 40-35-102(1), -103(2). Whether sentences are to be served
concurrently or consecutively is a matter addressed to the sound discretion of the trial court.
State v. Hastings, 25 S.W.3d 178, 181 (Tenn. Crim. App. 1999).
In imposing consecutive sentences in this case, the trial court found:
I do think that consecutive sentencing is warranted because he is an
offender. His record of criminal activity is extensive. And [that is] based both
not only on the adult but on his juvenile record.
And [there are] some cases that specifically say that I can consider his
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juvenile record on the issue of consecutive sentencing with regard to finding
him to be - - to have a record [that is] extensive.
One of those cases is State v. Banks. . . . Another case is State v.
Wallace. . . . And the third case is State v. Schmeiderer. . . .
And when you add up his adult record and his juvenile record, he
definitely fails within this category of a person whose record of criminal
activity is extensive.
On appeal, the defendant argues that the trial court erred in using his juvenile record
to establish that his record of criminal activity was extensive. He asserts that the three cases
relied upon by the court as authority in allowing such reliance on the juvenile record, “while
admitting the use of juvenile adjudications to establish an extensive criminal activity, do not
hold on the advisability of such admission.” The defendant also attempts to distinguish the
three cases from his by asserting that “unlike the case at bar, each of these cases represented
heinous crimes which included multiple consecutive sentencing factors.” He states that
“[j]uvenile court adjudications are not convictions, and they should not be treated as such for
the purposes of supporting consecutive sentencing through a finding [of] extensive criminal
activity.”
After review, we conclude that the defendant’s argument is misplaced as this court has
specifically held that “a juvenile record of criminal conduct may properly be considered in
assessing a suitable sentence after a felony conviction by an adult.” Adams, 973 S.W.2d at
231. Additionally, his attempt to distinguish the cases relied upon by the trial court upon the
ground that those cases involved findings of multiple factors under Tennessee Code
Annotated section 40-35-115(b) is also misplaced. The argument ignores the well-
established principle that the existence of a single category under the statute is sufficient to
warrant the imposition of consecutive sentencing. Thus, the finding that an extensive
criminal history exists will, alone, support consecutive sentencing, see id. at 231, and the
fact that additional factors were found is not relevant. In each of the cases cited by the trial
court, reliance on a defendant’s juvenile history in finding an extensive criminal history was
upheld. See State v. Devin Banks, No. W2005-02213-CCA-R3-DD (Tenn. Crim. App. at
Jackson, Jul. 6, 2007) (“the appellant, as a juvenile, had a series of non-judicially adjudicated
offenses. . . . Thus, the record supports the trial court’s conclusion that [he] had an extensive
criminal history”); State v. Brandon Wallace, No. W2005-02514-CCA-R3-CD (Tenn. Crim.
App. at Jackson, Nov. 7, 2006) (“[t]he nineteen-year-old Appellant had numerous prior
adjudications of delinquent acts as a juvenile which clearly supports the court’s finding of
an extensive criminal history.”); State v. Joel Richard Schmeiderer, No. M1999-02546-CCA-
R3-CD (Tenn. Crim. App. at Nashville, Nov. 9, 2000) (“[w]hile the Defendant’s prior
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criminal record consists entirely of juvenile offenses, it is certainly extensive . . . and the trial
court’s finding that the Defendant’s record of criminal activity is extensive is adequately
supported by the record, making consecutive sentences appropriate”).
Having rejected the defendant’s argument regarding consideration of the juvenile
adjudications, review of the record reveals no abuse of discretion as the record
overwhelmingly supports the imposition of consecutive sentencing. The presentence report
reveals that the twenty-five-year-old defendant began a pattern of breaking laws at the age
of eleven. As a juvenile, he committed numerous offenses including burglary, evading arrest,
criminal trespassing, vandalism, disorderly conduct, aggravated burglary, theft, and assault.
As an adult, the defendant has been convicted of six prior felonies, as well as six prior
misdemeanors. We fail to see how this could not be considered an extensive criminal
history. Because the court followed the statutory sentencing procedure and gave due
consideration and proper weight to the relevant sentencing factors and principles, we will not
disturb the decision to impose consecutive sentencing.
CONCLUSION
Based upon the foregoing, the imposition of consecutive sentencing is affirmed.
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JOHN EVERETT WILLIAMS, JUDGE
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