State of Tennessee v. Austin Drummond ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 6, 2015
STATE OF TENNESSEE v. AUSTIN DRUMMOND
Appeal from the Circuit Court for Madison County
No. 14232 Roy B. Morgan, Jr., Judge
No. W2014-02553-CCA-R3-CD - Filed May 25, 2016
_____________________________
Defendant, Austin Drummond, was indicted by the Madison County Grand Jury with one
count of aggravated robbery. Following a jury trial, Defendant was convicted of the
offense. The trial court sentenced Defendant to serve ten years in the Department of
Correction. In this appeal as of right, Defendant asserts that the evidence was insufficient
to support his conviction and that his sentence is excessive. Having carefully reviewed
the record before us and the briefs of the parties, we affirm the judgment of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.
Kortney D. Simmons, Jackson, Tennessee, for the Appellant, Austin Drummond.
Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General, James G. (Jerry) Woodall, District Attorney General; and Jody
Pickens, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
Background
On July 31, 2013, Candice Barham was working the late shift as the First Assistant
Manager of the Circle K convenience store located on the corner of Highland and
University Streets in Jackson. At approximately 12:30 a.m., a white male later identified
as Defendant entered the store. He was wearing a hat and a black oversized t-shirt with a
white graphic on the front of the cartoon character “Stewie” from the television show
Family Guy. Ms. Barham thought that Defendant‟s behavior was suspicious as he
walked down every aisle of the store and watched her. She explained that at that time of
night, customers usually “know what they came for. They come, they get what they were
going to get and they leave.” Ms. Barham asked Defendant if she could help him find
anything, and he replied, “No, I‟m just looking. I got the munchies.” She testified that
Defendant was in the store for a total of three to four minutes.
When Ms. Barham turned to look out the window into the parking lot, Defendant
walked behind the register. When she turned back around, he was standing within two
feet of her. Defendant then pointed a pistol at Ms. Barham and ordered her to “[o]pen the
drawer. I‟m not fu - - - - g playing with you. Open the drawer.” Ms. Barham testified
that at that point, she felt threatened and feared for her life. She opened the cash register
and stepped back. Defendant reached into the drawer and took the bills that were in the
till. He also lifted the till to see if there was any money underneath, but it was empty.
Defendant appeared to be upset that there was no additional cash and said, “Man, ya‟ll
tripping.” He repeated the statement three times as he left the store. Ms. Barham
testified that Defendant took a total of forty-four dollars out of the register. As the First
Assistant Manager, it was her responsibility to exercise custody and control over the
money.
After Defendant left, Ms. Barham locked the doors and called police. As she was
locking the door and on the phone with the 911 dispatcher, Ms. Barham saw two police
officers, who were regular customers, pull into the parking lot. Ms. Barham motioned to
the officers that there had been a robbery. She told them that Defendant ran past the
officers after he exited the store. The officers got back into their patrol car and drove after
Defendant. Ms. Barham later told police that the robber was a white male, twenty to
thirty years old, wearing black clothing. She was unable to identify Defendant from a
photographic lineup because his “picture looked different.” Ms. Barham identified
Defendant in the courtroom as the man who robbed her on July 31, 2013. She explained
that it was different seeing Defendant in person as opposed to seeing the photograph of
him.
Ms. Barham identified a video recording of the robbery from the Circle K‟s
surveillance system. She identified Defendant several times on the video. The video
showed Defendant entering the Circle K at 12:32 a.m. and walking through the candy
isle. It also showed Defendant robbing Ms. Barham and then exiting the store at 12:35
a.m. Ms. Barham identified Defendant in the video holding a pistol in his right hand as
he approached Ms. Barham.
Officer Joshua Vincent of the Jackson Police Department testified that he and
Officer Mullins pulled into the Circle K store on July 31, 2013, at approximately 12:30 to
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12:35 a.m. When they arrived Officer Vincent saw a white male, approximately six-feet
tall weighing 150-170 pounds, and wearing dark clothing and a baseball hat, running out
of the store. He also saw Ms. Barham waving at the officers. Officer Vincent testified
that he and Officer Mullins approached the locked front door of the store. Ms. Barham
informed them that the man who ran past them had robbed her. The officers immediately
issued a BOLO (be on the lookout) for the man. They searched for the person for twenty
to thirty minutes but could not find him.
Officer Joseph King of the Jackson Police Department testified that he was the
crime scene technician dispatched to the robbery scene at the Circle K. He spoke with
Ms. Barham who told him that Defendant touched the cash register and the front door.
Officer King testified that he lifted a fingerprint from the left front door of the store, and
he also lifted three fingerprints from inside the cash register. He drew a diagram of the
register and marked the area where the prints were lifted.
Investigator Aubrey Richardson of the Jackson Police Department, Major Case
Unit, testified that he investigated the robbery that occurred on July 31, 2013. He also
asked William Roane, a latent fingerprint examiner with the Jackson Police Department,
to assist with the case. Investigator Richardson was given the names of Shawn Bruin and
Defendant as possible suspects in the robbery, and he asked Mr. Roane to compare the
prints lifted by Officer King with those of the two men. Investigator Richardson also
took still photographs from the video surveillance of the robbery, and he obtained a
photograph of Defendant that had been taken on June 14, 2013. In the photograph,
Defendant had a beard, mustache, and longer hair. This differed from his appearance at
trial. Investigator Richardson showed a photographic lineup to Ms. Barham on August 1
or 2, 2013, but she was unable to identify anyone from the lineup as the individual who
committed the robbery. Mr. Roane reported that the prints did not match those of Shawn
Bruin.
William Roane, an expert in the area of latent print identification and examination,
testified that he compared the fingerprints lifted by Officer King from the Circle K with
those of Defendant. He determined that a print lifted from inside the cash drawer of the
register was made by Defendant‟s left ring finger and “no other.” Mr. Roane testified
that another latent fingerprint examiner with the Jackson Police Department, Aimee
Oxley, conducted an independent analysis and verified his findings.
Analysis
I. Sufficiency of the Evidence
Defendant contends that the evidence at trial was insufficient to sustain his conviction
for aggravated robbery. Specifically, Defendant asserts that the State failed to prove that
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anything was taken from Ms. Barham‟s person and that the State failed to produce the
weapon used during the aggravated robbery. Defendant also argues that the State failed
to prove that he was the perpetrator of the aggravated robbery. We conclude that the
evidence is sufficient to support Defendant‟s conviction.
“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992)). When this court evaluates the sufficiency of the evidence on appeal, the State is
entitled to the strongest legitimate view of the evidence and all reasonable inferences that
may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011)
(citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant
challenges the sufficiency of the evidence, the standard of review applied by this court is
“whether „any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.‟” State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Similarly, Rule 13(e) of the
Tennessee Rules of Appellate Procedure states, “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.”
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of
review for sufficiency of the evidence “„is the same whether the conviction is based upon
direct or circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009). The jury as the trier of fact
must evaluate the credibility of the witnesses, determine the weight given to witnesses‟
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d
331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App.
1978)). Moreover, the jury determines the weight to be given to circumstantial evidence
and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court
shall not substitute its inferences for those drawn by the trier of fact. Id.
The identity of the perpetrator “is an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006). The perpetrator‟s identity “may be established
solely on the basis of circumstantial evidence.” State v. Lewter, 313 S.W.3d 745, 748
(Tenn. 2010).
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A person commits aggravated robbery who commits a robbery with a deadly
weapon. T.C.A. § 39-13-402(a)(1). Robbery “is the intentional or knowing theft of
property from the person of another by violence or putting the person in fear.” Id. § 39-
13-401(a). “A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner‟s effective consent.” Id. § 39-14-103.
Defendant first argues that the State failed to prove that “anything was taken from
the person of Candice Barham.” He asserts that Defendant did not touch or threaten Ms.
Barham and that the money taken on July 31, 2013, did not belong to Ms. Barham. He
also notes that the State did not produce any weapon used in the offense. In the light
most favorable to the State, the proof at trial showed that during the early morning hours
of July 31, 2013, Ms. Barham was working as the First Assistant Manager of the Circle K
convenience store located on the corner of Highland and University Streets in Jackson.
As the First Assistant Manager, it was her responsibility to exercise custody and control
over the money in the cash register. The proof showed that Ms. Barham is an employee
of the Circle K Convenience Store. Ms. Barham testified that when she turned to look
out the window into the parking lot, Defendant walked behind the register. When she
turned back around, he was standing within two feet of her. Defendant then pointed a
pistol at Ms. Barham and ordered her to “[o]pen the drawer. I‟m not fu - - - - g playing
with you. Open the drawer.” Ms. Barham testified that at that point, she felt threatened
and feared for her life. She opened the cash register and stepped back. Defendant
reached into the drawer and took the bills that were in the till. He also lifted the till to see
if there was any money underneath, but it was empty. Ms. Barham testified that
Defendant took a total of forty-four dollars out of the register. Although the State did not
introduce a pistol at trial, Ms. Barham testified that Defendant pointed a pistol at her, and
she identified Defendant in the video holding an object in his right hand as he approached
her. Ms. Barham identified the object as a pistol.
Defendant also argues that the State failed to prove that he was the individual who
committed the aggravated robbery. Ms. Barham identified Defendant in the courtroom as
the person who robbed her on July 31, 2013, at the Circle K Convenience Store. Ms.
Barham admitted that she could not identify Defendant from the photographic lineup that
she was shown after the robbery because Defendant looked different in the photograph.
Investigator Robinson confirmed that Defendant looked different in the courtroom than
he did in the photo. In the photograph, Defendant had a beard, mustache, and longer hair.
After the robbery, Ms. Barham described Defendant‟s clothing to police, and Officer
Vincent saw a man, who Ms. Barham identified as the person who robbed her, run out of
the Circle K wearing the same clothing that Ms. Barham had described. At trial, Ms.
Barham identified Defendant several times in the surveillance video. Mr. Roane, an
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expert in the area of latent print identification and examination, testified that he compared
the fingerprints lifted by Officer King from the Circle K with those of Defendant. He
determined that a print lifted from inside the cash drawer of the register was made by
Defendant‟s left ring finger and “no other.” Mr. Roane testified that another latent
fingerprint examiner with the Jackson Police Department, Aimee Oxley, conducted an
independent analysis and verified his findings.
Therefore, we conclude that evidence existed that reasonable minds could accept
that Defendant committed the offense of aggravated robbery.
II. Length of Sentence
Defendant challenges the length of his sentence for the Class B felony of
aggravated robbery. He contends that the trial court erred by failing to consider certain
mitigating factors.
Appellate review of the length, range, or manner of service of a sentence imposed
by the trial court are to be reviewed under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). In
sentencing a defendant, the trial court shall consider the following factors: (1) the
evidence, if any, received at the trial and the 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 involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-
35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98. The burden is on the appellant
to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,
Sentencing Comm‟n Cmts.
In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and
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(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement
factors set out in §§ 40-35-113 and 40-35-114.
T.C.A. § 40-35-210(c).
Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court‟s weighing of various mitigating and
enhancement factors [is] left to the trial court‟s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is „consistent with the purposes and principles
of [the Sentencing Act].‟” Id. at 343 (emphasis added). Appellate courts are “bound by a
trial court‟s decision as to the length of the sentence imposed so long as it is imposed in a
manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Id. at 346.
The applicable sentencing range for a Range I offender convicted of a Class B
felony is 8 to 12 years. T.C.A. § 40-35-112(a)(2). The trial court imposed a sentence of
ten years for Defendant‟s conviction of aggravated robbery.
The trial court stated on the record its findings regarding applicable enhancement
and mitigating factors. Concerning enhancement factors, the trial court stated:
As far as enhancing factors, of course, the juvenile records referred to in
the presentence report, the history as to this Defendant, but while
incarcerated for this offense, of course, he committed the act of
vandalism. That is evidenced in the record at this point, Exhibit 2. He
does have the prior juvenile adjudications for assault and resisting arrest.
If you review the presentence report, and there‟s been no contest to its
accuracy, he had a tendency to flee on occasion. He would run when
they were about to apprehend him. That‟s referenced more than one
time. And in fact, it‟s referenced in the testimony in this case through
the father, Mr. Drummond. And I know it‟s difficult for the family. The
father is here. But this Defendant did flee to Daytona Beach, Florida
after this incident.
T.C.A. § 40-35-114(1) and (16). The trial court did not find any specific mitigating
factors applicable to Defendant. However, the trial court stated: “There is a catch all, I
think Number 13, any factors consistent with the purpose of the chapter. I might consider
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the young age of this Defendant who‟s now 18 years of age, but that would be the only
thing I could think of that would apply.” T.C.A. § 40-35-113(13). More specifically,
Defendant argues that the trial court “considered the Defendant‟s juvenile records, the
vandalism conviction received during pretrial incarceration, the presentence report and
the jail conversation recorded after Defendant was convicted but refused to thoughtfully
consider the Defendant‟s age or anything else.” Defendant further asserts that trial court
failed to consider his mental health as a mitigating factor.
In Bise our supreme court held:
We hold, therefore, that a trial court‟s misapplication of an enhancement
or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005. So
long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by
the trial court within the appropriate range should be upheld.
Bise, 380 S.W.3d at 706 (emphasis added). In its conclusion, the supreme court pointed
out that in sentences involving misapplication of enhancement factors (even in those
cases where no enhancement factor actually applies) the sentences must still be affirmed
if the sentences imposed are within the appropriate range, and the sentences are in
compliance with statutory sentencing purposes and principles. Id. at 710.
Our General Assembly has enacted twenty-five (25) statutory sentencing
enhancement factors; however, they are not binding upon the trial courts. T.C.A. § 40-
35-114 (Supp. 2015). The standard of review established in Bise provides that the
minimum sentence can be imposed even if the trial court correctly applies all twenty-five
enhancement factors, or the maximum sentence imposed even if no statutory
enhancement factors are applicable, as long as the sentence is within the correct range
and the sentence complies with other sentencing purposes and principles. Accordingly,
appellate review of enhancement factor issues is arguably superfluous when reviewing
the length of a sentence.
Having reviewed the record before us, we conclude that the trial court clearly
stated on the record its reasons for the sentences imposed, and Defendant‟s sentence is
within the appropriate range. The record reflects that the trial court considered the
purposes and principles of the Sentencing Act. Defendant argues that the trial court
failed to consider his age and mental health as mitigating factors. However, even if this
court agreed with Defendant‟s assertions, we would still lack grounds to reverse
Defendant‟s sentence. Therefore, the trial court‟s imposition of a sentence of ten years
for aggravated robbery is presumed reasonable.
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Accordingly, the judgment is affirmed.
____________________________________________
THOMAS T. WOODALL, PRESIDING JUDGE
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