State of Tennessee v. Bryan A. Erwin ( 2022 )

08/15/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 26, 2022 Session
STATE OF TENNESSEE v. BRYAN A. ERWIN
Appeal from the Criminal Court for Bradley County
No. 19-CR-114 Andrew M. Freiberg, Judge
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No. E2021-01232-CCA-R3-CD
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A Bradley County jury convicted the defendant, Bryan A. Erwin, of simple assault and
aggravated assault for which the trial court imposed an effective three-year sentence to be
served in the Tennessee Department of Correction. On appeal, the defendant contends that
the State committed prosecutorial misconduct at various times during the trial and that the
trial court erred in certain evidentiary rulings and in sentencing. After reviewing the record
and considering the applicable law, we affirm the judgments of the trial court.
Additionally, we remand for the entry of corrected judgment forms to reflect the
appropriate conviction for count 1, for simple assault, and count 2, for aggravated assault.
Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and
Remanded
J. ROSS DYER, J., delivered the opinion of the court, in which ROBERT H. MONTGOMERY,
JR. and TIMOTHY L. EASTER, JJ., joined.
Stephen S. Duggins, Chattanooga, Tennessee (on appeal); Charles Pope, Cleveland,
Tennessee (at trial), for the appellant, Bryan A. Erwin.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney
General; Stephen D. Crump, District Attorney General, for the appellee, State of
Tennessee.
OPINION
Facts and Procedural History
This case stems from an apparent “road rage” incident involving the defendant and
his two victims, Stacey and Jimmy Langford. The testimony at trial established that on
September 19, 2018, Ms. Langford pulled out of a parking lot and into the right-hand lane
of Paul Huff Parkway in Bradley County, Tennessee. After completing the turn, Ms.
Langford heard a horn and looked in her rearview mirror where she saw the defendant
swerving into the left-hand lane on his motorcycle. The defendant began following Ms.
Langford, continued honking his horn, and yelled at her “to pull the f*** over.” Ms.
Langford was scared. She called her husband, Mr. Langford, who advised her to come to
his workplace, Derby Industries, approximately four miles away.
When Ms. Langford arrived at Derby Industries, Mr. Langford was standing outside
of the gate waiting for her, and she parked behind the gate. The defendant parked outside
of the gate, dismounted, and approached Mr. Langford. The defendant was pointing at Ms.
Langford and yelling, “that f****** c***.” The defendant chest bumped Mr. Langford,
and Mr. Langford “shoved” the defendant. The defendant then returned to his motorcycle,
pulled a gun from the saddlebag, and “[p]ut a round in the chamber.” He approached Mr.
Langford again, stating “Push me again, motherf*****, I’ll kill you.” Mr. Langford then
put his hands up and backed away. At one point, the defendant “ripped [his shirt] off in a
very aggressive manner” and showed Mr. Langford scars on his back from surgery. The
defendant placed the gun in his waistband but continued to verbally assault Mr. Langford
until the police arrived.
Officers Scott Criddle and Michael Gunnell of the Cleveland Police Department
responded to the scene. When Officer Criddle arrived, the defendant was shirtless with “a
handgun tucked in his pants.” Officer Criddle took the gun from the defendant, unloaded
it, and secured it in his patrol vehicle. When Officer Gunnell arrived, he took the gun into
evidence and arrested the defendant. Officer Gunnell testified the defendant’s gun was a
SCCY .9 millimeter handgun. The gun was entered into evidence along with pertinent
photographs of Paul Huff Parkway and Derby Industries.
Both Mr. and Ms. Langford testified they were frightened during the incident. The
defendant told Mr. Langford “at least two times that he was going to kill me.” Though Mr.
Langford testified that the defendant did not point the gun at him, he stated the defendant
“was brandishing” the gun throughout the incident. Ms. Langford testified she saw “a gun
in [the defendant’s] waistband” but she did not see the defendant point the gun at her or
Mr. Langford. Regardless, Ms. Langford stated she “was extremely fearful” that either she
or Mr. Langford could have been shot. The State then rested its case, and the defendant
testified on his own behalf.1
1
The parties stipulated to a portion of body camera footage being entered into evidence. Though
the defendant presented the footage during trial, he failed to enter it into evidence.
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The defendant stated that he has “always” been responsible and safe in handling
firearms. He also testified about his employment history, noting that he currently served
the community through a gutter cleaning service but that he previously worked as a
dispatcher for the Chattanooga Police Department (“CPD”).
The defendant’s testimony regarding the incident with Ms. Langford centered
around his belief that she cut him off, was potentially intoxicated, and he needed to ensure
she did not injure other motorists. As a result, the defendant followed Ms. Langford and
began yelling at her to pull over. The defendant admitted to using profanity.
After parking outside of the gate at Derby Industries, the defendant got off of his
motorcycle and asked Mr. Langford, “Hey, what’s wrong with this lady.” Mr. Langford
shoved the defendant, and the defendant responded by putting his hands up and stating,
“Look, I’m not here to fight, don’t put your hands on me.” Mr. Langford then pushed the
defendant again, causing him to fall to the ground. The defendant went to his motorcycle
and pulled his gun from the saddlebag. He placed the gun in his waistband, noting “it
always had a bullet in the chamber.” The defendant claimed Mr. Langford continued to
engage him, stating “I’m gonna (sic) beat your a**, I’m gonna (sic) beat your a**.” Mr.
Langford “kept telling [the defendant] to put the gun down” so the two could fight. In
response, the defendant told Mr. Langford, “go ahead, but you’re gonna (sic) have to take
a bullet.”
The defendant denied chest bumping Mr. Langford and explained he retrieved his
gun after Mr. Langford threatened him. The defendant told Mr. Langford that he was
disabled and removed his shirt in order to show his scars, not to fight. After placing the
gun in his waistband, the defendant stated Mr. Langford did not push or touch him again.
He told Mr. Langford, “If you do get physical past this point, you will be shot,” but the
defendant stated this was not meant as a threat. The defendant denied pointing,
brandishing, or waving the gun at Mr. Langford and stated he did not leave the situation
because “I didn’t do anything wrong. I was the one that had been wronged.”
During cross-examination, the State questioned the defendant about why he was
terminated from his dispatch position with the CPD. Despite numerous objections, which
are detailed later in this opinion, the defendant ultimately admitted to being terminated
from the CPD for “insubordination.” Though the defendant acknowledged the
insubordination was for lying during an internal investigation regarding allegations of a
road rage incident and sexual harassment, the defendant maintained that he did not lie
during the investigation. During redirect examination, the defendant acknowledged “there
was an administrative finding” regarding his termination with the CPD but again denied
that he lied during the investigation.
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After deliberations, the jury found the defendant guilty of the simple assault of Ms.
Langford (count 1) and the aggravated assault of Mr. Langford (count 2). At the
subsequent sentencing hearing, the State entered into evidence the presentence report and
Mr. and Ms. Langford’s victim impact statements and presented testimony from CPD
Officer Jason Irvin and Assistant District Attorney (“ADA”) Paul Moyle.
Officer Irvin testified that he conducted an internal investigation of “a road rage
incident” involving the defendant while he worked as a dispatcher for the CPD. The
investigation revealed the defendant was not truthful about the incident and his
employment was terminated.2 ADA Moyle testified he first met the defendant when
handling the defendant’s case in general sessions court. In November 2019, the defendant
mailed ADA Moyle’s wife a letter wherein the defendant claimed ADA Moyle had
“maliciously filed charges against [him],” noted details about ADA Moyle’s career history
and previous residences, attached two copies of the defendant’s handgun carry permit, and
stated “I will not stand by and allow [ADA Moyle] to do this to me and I will defend
myself.” ADA Moyle stated both he and his wife felt threatened by the letter, a copy of
which was entered into evidence. The defendant did not offer any proof.
The trial court subsequently sentenced the defendant to the TDOC to serve three
years for the aggravated assault conviction and eleven months and twenty-nine days for the
simple assault conviction, suspended to supervised probation, with the terms to be served
concurrently. The defendant filed a motion for a new trial which was denied by the trial
court. This timely appeal followed.
Analysis
I. Cross-Examination of The Defendant
The defendant argues the trial court erred by allowing the State to cross-examine
him regarding his termination from the CPD, asserting the State elicited inadmissible
evidence “regarding an alleged prior act of brandishing a firearm during a road rage
incident.” The defendant suggests the evidence was hearsay and also inadmissible pursuant
to Rules 403 and 404(b) of the Tennessee Rules of Evidence. The State argues the
defendant “tied his credibility to his work history and responsible gun ownership during
direct examination,” and, as a result, “opened the door for the State to question him about
the circumstances of his dismissal from the police department, which included an allegation
2
The State introduced documents from the Tennessee Department of Labor & Workforce
Development affirming the denial of unemployment benefits for the defendant after he was fired from the
CPD. The trial court admitted the documents into evidence but noted it would not consider “the double
layer of hearsay[] which is included in a large portion of the substance” of the documents.
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of irresponsible gun ownership.” Upon our review, we conclude the evidence was
admissible after the defendant opened the door to the same during direct examination.
In Tennessee, “[a] witness may be cross-examined on any matter relevant to any
issue in the case, including credibility.” Tenn. R. Evid. 611(b). “Generally speaking, a
denial of the right to an effective cross-examination is ‘constitutional error of the first
magnitude and amounts to a violation of the basic right to a fair trial.’” State v. Dishman,
915 S.W.2d 458, 463 (Tenn. Crim. App. 1995) (quoting State v. Hill, 598 S.W.2d 815, 819
(Tenn. Crim. App. 1980)). “The propriety, scope, manner and control of the cross-
examination of witnesses, however, rests within the discretion of the trial court.” Id. (citing
Coffee v. State, 216 S.W.2d 702, 703 (1948); Davis v. State, 212 S.W.2d 374, 375 (1948)).
“Appellate courts may not disturb limits on cross-examination except when there has been
an unreasonable restriction on the right.” Id. (citing State v. Fowler, 373 S.W.2d 460, 466
(1963); State v. Johnson, 670 S.W.2d 634, 636 (Tenn. Crim. App. 1984)).
“To attack the credibility of a witness, a party may question the witness concerning
any matter that has been fairly raised by the evidence.” State v. Gomez, 367 S.W.3d 237,
248 (Tenn. 2012). “A party may not introduce a subject that is inadmissible to attack the
credibility of a witness.” Id. (citing State v. West, 844 S.W.2d 144, 149 (Tenn. 1992)).
However, “[e]ven if evidence is inadmissible, a party may ‘open the door’ to admission of
that evidence.” Id. at 246. “A party opens the door to evidence when that party ‘introduces
evidence or takes some action that makes admissible evidence that would have previously
been inadmissible.’” Id. (quoting 21 Charles Alan Wright et al., Federal Practice &
Procedure Evidence § 5039 (2d ed. 1987)). “The most common manner by which a party
opens the door to inadmissible evidence is by raising the subject of that evidence at trial.”
Id. “When a party raises a subject at trial, the party ‘expand[s] the realm of relevance,’ and
the opposing party may be permitted to present evidence on that subject.” Id. (quoting 21
Charles Alan Wright et al., Federal Practice & Procedure Evidence § 5039.1; see
also Clark v. State, 629 A.2d 1239, 1242 (1993) (“The ‘opening the door’ doctrine is really
a rule of expanded relevancy. . . .”)).
“[O]pening the door is a doctrine intended to serve fairness and truth-seeking.”
State v. Vance, 596 S.W.3d 229, 250 (Tenn. 2020) (citation omitted). “Accordingly, . . .
the remedy sought after a party has opened the door should be both relevant and
proportional.” Id. at 250-51. “The otherwise inadmissible evidence sought to be
introduced by the opposing party should be limited to that necessary to correct a misleading
advantage created by the evidence that opened the door.” Id. at 251 (citation omitted).
“The trial court is in the best position to gauge the prejudicial impact of particular
testimony.” Id. (quoting State v. Gaudet, 97 A.3d 640, 646 (2014)).
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Rulings regarding the relevancy of evidence are “within the trial court’s discretion
and will not be reversed on appeal absent an abuse of that discretion.” State v. Biggs, 218
S.W.3d 643, 667 (Tenn. Crim. App. 2006) (citing State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997)). Relevant evidence is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. “Evidence that is
not relevant to prove some part of the prosecution’s case should not be admitted solely to
inflame the jury and prejudice the defendant.” State v. Jordan, 325 S.W.3d 1, 85 (Tenn.
2010). Further, “evidence which is unfairly prejudicial is that which has an undue tendency
to suggest a decision on an improper basis, frequently, though not necessarily, an emotional
one.” State v. March, 395 S.W.3d 738, 774 (Tenn. Crim. App. 2011) (citing State v. Banks,
564 S.W.2d 947, 951 (Tenn. 1978)).
Here, the record makes clear that during direct examination, the defendant testified
that he “currently serves the community.” Additionally, the defendant testified about his
service to the CPD “as a 911 dispatcher, call taker, and I did NCIC, as far as entering
missing children, runaways, you know people, things of that nature.” The defendant also
stated that he has always been a responsible and safe gun owner. As such, during cross-
examination, the State sought to elicit testimony from the defendant as to why he left the
CPD. When the defendant claimed he left on his own because he “didn’t agree with the
political nature of the job. And while [he] loved what [he] did, [he] didn’t love the people
[he] worked for,” the State challenged the defendant’s answer and asked if he was not
dismissed from the job for lying during two separate administrative hearings. The
defendant objected to this line of questioning. The trial court overruled the objections,
noting the defendant had opened the door to this subject matter during direct and the
questions were relevant to the defendant’s credibility. The defendant admitted he was fired
from the CPD after the internal investigation but denied lying during the investigation.
Upon our review of the record, we conclude the trial court did not err in allowing
the State to question the defendant about why he was terminated from the CPD because it
related to the defendant’s credibility. The defendant testified during direct about his
service to the CPD and stated he had “always” been responsible when handling guns. After
making these statements, the State attempted to attack the defendant’s credibility during
cross-examination by inquiring about the circumstances surrounding the defendant’s
termination from the CPD for lying during an administrative proceeding about a prior road
rage incident involving the brandishing of a gun. Additionally, the State attempted to
question the defendant about lying during an administrative hearing concerning an
allegation of sexual harassment. As a result, the record indicates the trial court properly
determined the State could question the defendant about his credibility as it related to his
termination from the CPD and his gun use as it had been fairly raised during direct
examination. Gomez, 367 S.W.3d at 248. Because the defendant’s termination from the
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CPD involved allegations that he lied during his employment, the defendant’s responses to
questions regarding the allegations were relevant to establish his credibility before the jury.
The trial court properly allowed the questions in order for the State to correct the
misleading advantage created by the defendant’s direct testimony regarding his
employment history and past behavior with firearms. Vance, 596 S.W.3d at 251.
Accordingly, the record indicates the trial court properly determined that evidence
of the defendant’s termination from the CPD and the prior road rage incident during which
the defendant brandished a gun was relevant to the State’s ability to challenge the
defendant’s credibility during cross-examination. Tenn. R. Evid. 401. The admissibility
of evidence is within the sound discretion of the trial court, and this Court will not interfere
with that discretion absent a clear showing of abuse of discretion. See DuBose, 953
S.W.2d at 652. Nothing in the record indicates the trial court abused its discretion, and the
defendant is not entitled to relief.
II. Closing Argument
The defendant argues the State committed prosecutorial misconduct during closing
arguments “by claiming that all witness[es] testified that Mr. Langford was afraid when
that simply was not true.” The State contends that this Court must review this issue under
the doctrine of plain error because “[n]o objection followed this portion of argument.”
Upon our review of the record, however, we determine the defendant has waived review
of this issue and is not entitled to plain error relief. We will discuss each below.
As noted by the State, the record indicates the defendant failed to object to the
complained-of statements during trial. Thus, the issue is waived pursuant to Rule 36 of the
Tennessee Rules of Appellate Procedure, which provides: “Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.” Tenn. R. App. P. 36.
The defendant has also waived this issue for failing to specifically identify the
alleged prosecutorial misconduct in his motion for a new trial. In the motion, the defendant
alleged “several acts of prosecutorial misconduct,” asserted the State made “numerous
comments as to alleged actions of the [d]efendant to which no evidence of the same was
presented during trial,” and claimed “statements as to the [d]efendant’s past were made.”
However, the defendant failed to specifically cite to the record or detail the allegations
further. As a result, the issue is waived. Tenn. R. App. P. 3 (“Provided, however, that in
all cases tried by a jury, no issue presented for review shall be predicated upon error in the
admission or exclusion of evidence, . . . misconduct of jurors, parties or counsel, or other
action committed or occurring during the trial of the case, or other ground upon which a
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new trial is sought, unless the same was specifically stated in a motion for a new trial;
otherwise such issues will be treated as waived.).
Finally, the issue is waived because the defendant failed to include the transcript of
the hearing on the motion for a new trial in the record on appeal. If this Court is unable to
fully review an issue based on the defendant’s failure to include a full transcript, the issue
has been waived. See State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998) (failure to
include trial transcript on appeal resulted in waiver of sentence challenge). Because the
petitioner failed to provide a complete record on appeal, he has waived his claims of
prosecutorial misconduct.
Regardless, as noted by the State, the defendant’s argument also fails under plain
error review. Under the plain error doctrine, a defendant may obtain relief only if all of the
following criteria are satisfied: (1) the record clearly establishes what occurred in the trial
court, (2) a clear and unequivocal rule of law was breached, (3) a substantial right of the
accused was adversely affected, (4) the issue was not waived for tactical reasons, and (5)
consideration of the error is necessary to do substantial justice. State v. Martin, 505 S.W.3d
492, 504 (Tenn. 2016); State v. Hester, 324 S.W.3d 1, 56 (Tenn. 2010).
The defendant argues the State mischaracterized the evidence presented during trial
by suggesting during closing argument that all of the State’s witnesses testified that Mr.
Langford was scared. The record, however, disagrees. In its final closing, the State made
the following remark: “How many witnesses said that [Mr.] Langford was afraid? And
maybe they didn’t use those words. Every witness. They said it either because of what he
said or because he did, what he did, or more importantly, because of what he didn’t do.”
The State did not make any additional comments regarding the witnesses’ testimony about
whether Mr. Langford was fearful during his interaction with the defendant. Thus, our
review of the record indicates the State’s closing argument was simply a presentation of its
theory of the case during which it identified “the strengths and weaknesses in the evidence
to the jury.” State v. Hawkins, 519 S.W.3d 1, 47 (Tenn. 2017) (citations and quotations
omitted). Again, the trial court instructed the jury that the arguments of counsel were not
evidence, and we presume the jury followed the trial court’s instructions. State v. Joshua
R. Starner, No. M2014-01690-CCA-R3-CD, 2016 WL 1620778, at *21 (Tenn. Crim. App.
Apr. 20, 2016) (citing State v. Young, 196 S.W.3d 85, 111 (Tenn. 2006); State v. Shaw, 37
S.W.3d 900, 904 (Tenn. 2001)). In addition, the proof at trial overwhelmingly established
that Mr. Langford was scared during his interactions with the defendant. As such, the
defendant cannot show that a clear and unequivocal rule of law was breached, or that
consideration of the issue is necessary to do substantial justice, and he is not entitled to
relief. Martin, 505 S.W.3d at 504; Hester, 324 S.W.3d at 56.
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The defendant also argues the State’s made an improper statement in response to
his objections during his cross-examination. After the defendant objected to questioning
about the prior road rage incident and asserted he did not have an “opportunity to cross-
examine on any of this information,” the State responded, stating: “Just so the record’s
clear, [defense counsel] has half the Chattanooga Police Department under subpoena today,
for this very purpose.” The defendant asserts this amounted to prosecutorial misconduct.
We disagree.
Initially, we note, the defendant failed to specifically raise this issue in his motion
for a new trial; therefore, it is waived. Tenn. R. App. P. 3 (“Provided, however, that in all
cases tried by a jury, no issue presented for review shall be predicated upon error in the
admission or exclusion of evidence, . . . misconduct of jurors, parties or counsel, or other
action committed or occurring during the trial of the case, or other ground upon which a
new trial is sought, unless the same was specifically stated in a motion for a new trial;
otherwise such issues will be treated as waived.).
Regardless, the defendant cannot meet the burden required of him in order to obtain
plain error relief on this issue. As noted above, a defendant may obtain plain error relief
only if all of the following criteria are satisfied: (1) the record clearly establishes what
occurred in the trial court, (2) a clear and unequivocal rule of law was breached, (3) a
substantial right of the accused was adversely affected, (4) the issue was not waived for
tactical reasons, and (5) consideration of the error is necessary to do substantial
justice. Martin, 505 S.W.3d at 504; Hester, 324 S.W.3d at 56. As it relates to the
complained-of statement, the record fails to demonstrate that a substantial right of the
defendant was adversely affected. Rather, the record indicates the State was responding to
statements of defense counsel concerning his preparation in regards to evidence that would
potentially arise during trial. The record also indicates the trial court instructed the jury
that the arguments of counsel were not evidence, and this Court presumes the jury followed
the trial court’s instructions. Joshua R. Starner, 2016 WL 1620778, at *21; Shaw, 37
S.W.3d at 904. Thus, not only has the defendant waived this claim for failing to raise it in
his motion for a new trial, but also he has failed to demonstrate he is entitled to relief under
the doctrine of plain error. This issue is without merit.
III. Sentencing
The defendant asserts the trial court erred in sentencing by improperly “weighing
the mitigating and enhancing factors” and in finding his crime “was sufficiently horrifying
as to overcome the presumption of alternative sentencing.” The State submits the trial
court properly exercised its discretion in sentencing the defendant. After our review, we
agree with the State and affirm the judgments of the trial court.
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In determining an appropriate sentence, a trial court must 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 mitigating and enhancement 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 the defendant
makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.
Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed
should be the least severe measure necessary to achieve the purposes for which the sentence
is imposed.” Id. § 40-35-103(4).
Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See
id. §§ 40-35-114, -210(c). Although the application of the factors is advisory, a court shall
consider “[e]vidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-210(b)(5). The
trial court must also place on the record “what enhancement or mitigating factors were
considered, if any, as well as the reasons for the sentence, in order to ensure fair and
consistent sentencing.” Id. § 40-35-210(e).
When an accused challenges the length and manner of service of a sentence, this
Court reviews the trial court’s sentencing determination under an abuse of discretion
standard accompanied by a presumption of reasonableness for within-range sentencing
decisions that reflect a proper application of the purposes and principles of our Sentencing
Act. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). If a trial court misapplies an
enhancement or mitigating factor in passing sentence, said error will not remove the
presumption of reasonableness from its sentencing determination. Bise, 380 S.W.3d at
709. This Court will uphold the trial court’s sentencing decision “so long as it is within
the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709-10. Moreover,
under such circumstances, appellate courts may not disturb the sentence even if we had
preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The
party challenging the sentence imposed by the trial court has the burden of establishing that
the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n
Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
A. Enhancement Factor
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Here, the record indicates the trial court sentenced the defendant to three years’
incarceration as a Range I offender for the Class C felony of aggravated assault.3 As a
Range I offender, the defendant faced a sentencing range between three and six years.
Tenn. Code Ann. §§ 39-13-102; 40-35-112(a)(3). Therefore, the three-year sentence
imposed by the trial court falls within the applicable sentencing range for the defendant’s
offense and is presumed reasonable by this Court. Bise, 380 S.W. 3d at 707; State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).
The defendant argues the trial court improperly applied enhancement factor (1) –
the defendant has a previous history of criminal convictions or criminal behavior, in
addition to those necessary to establish the appropriate range – by relying on inadmissible
evidence from Officer Irwin regarding a prior road rage incident. Tenn. Code Ann. 40-35-
114(1). In assessing the applicable enhancement and mitigating factors, the trial court
stated, in part:
I do not believe that he was overly cooperative to justify the
application of a mitigating factor. The only mitigating factor I find is
mitigating factor (13). He has no prior record, he does have a work history,
and he does have people in the community as contained in exhibit one, the
PSI, who support him and vouch for him as a good man, all of which
combined plays into mitigating factor (13).
I am gonna (sic) find enhancement factor (1), that he has a prior
history of criminal behavior. I’m gonna (sic) find by a preponderance of the
evidence accredit the testimony of Assistant Chief Irvin from the City of
Chattanooga, who measured his investigation by a preponderance of the
evidence, I might add, that in a road situation, defendant admitted to turning
on a dome light and once again displaying a firearm. I always thought that
firearm safety demanded you never display a firearm unless you intend to
use it. We don’t just go around waving guns, and it is very concerning to this
[c]ourt that that prior criminal behavior by a preponderance of the evidence
is very similar and akin to the convictions at bar.
I don’t find that the offense involved more than one victim. He’s
convicted of two separate offenses, so the fact that there were two, he’s got
two separate convictions, one for simple assault and one for aggravated
3
The defendant only challenges his sentence for aggravated assault on appeal. Accordingly, we
limit our review to the sentence imposed for that conviction.
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assault. So the only enhancement factor I find is number (1). The only
mitigating factor I find is number (13).
....
In balancing out the mitigation and the enhancement, while I find that
the enhancement is significant because it’s a similar crime, I do think it’s
significant that [the defendant] has no prior record at 36 years of age; that he
always has been employed. I think it’s a wash. The two factors balance
together, equal that it should be a three-year term in count one, and should
be an 11/29 term in count two.
I also want to give voice to the fact that 40-35-102 says 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 relativeness, relative seriousness of each
offense. So it is not binding, but when you have these two factors, which in
this [c]ourt’s opinion equal out, I do believe the minimum sentence is
appropriate.
As evidenced above, in sentencing the defendant, the trial court properly weighed
the applicable enhancement and mitigating factors and determined the two balanced each
other out before imposing the minimum sentence within the applicable range. The record
indicates the defendant did not have a history of criminal convictions but “admitted to
turning on a dome light and once again displaying a firearm” during the prior road rage
incident. In addition, the trial court accredited the testimony of Officer Irwin who
investigated the road rage incident and determined the defendant participated in and lied
about the same. The defendant’s action of displaying a firearm during a road rage incident
constitutes criminal behavior regardless of whether it was prosecuted.
Thus, the record indicates the trial court imposed a within-range sentence after
properly considering the evidence adduced at trial and the sentencing hearing, the
presentence report, the principles of sentencing, the parties’ arguments, the nature and
characteristics of the crime, and evidence of mitigating and enhancement factors. Tenn.
Code Ann. §§ 40-35-103(5), -114, -210(b). Nothing in the record indicates the trial court
abused its discretion in weighing the applicable enhancement and mitigating factors. Bise,
380 S.W.3d at 707. And, our supreme court has made clear “mere disagreement with the
trial court’s weighing of the properly assigned enhancement and mitigating factors is no
longer a ground for appeal.” Id. at 706. The defendant is not entitled to relief.
B. Alternative Sentencing
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The defendant also argues the trial court erred in finding his crime “was sufficiently
horrifying as to overcome the presumption of alternative sentencing.” The State contends
the trial court properly denied alternative sentencing after making the appropriate findings,
and we agree.
The standard of review for questions related to probation or any other alternative
sentence is an abuse of discretion with a presumption of reasonableness for within-range
sentences reflecting a decision based upon the principles and purposes of
sentencing. Caudle, 388 S.W.3d at 278-79. Generally, probation is available to a
defendant sentenced to ten years or less. Tenn. Code Ann. § 40-35-303(a) (2014). The
burden of establishing suitability for an alternative sentence rests with a defendant, who
must demonstrate that probation will “‘subserve the ends of justice and the best interest of
both the public and the defendant.’” State v. Souder, 105 S.W.3d 602, 607 (Tenn. Crim.
App. 2002) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.
1990)); see Tenn. Code Ann. § 40-35-303(b); State v. Russell, 773 S.W.2d 913, 915 (Tenn.
1989); State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008).
A trial court is permitted to sentence a defendant to incarceration when:
(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 effective
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[.]
Tenn. Code Ann. § 40-35-103(1)(A)-(C) (2018); see State v. Trotter, 201 S.W.3d 651, 654
(Tenn. 2006). A trial court must consider (1) the defendant’s amenability to correction, (2)
the circumstances of the offense, (3) the defendant’s criminal record, (4) the defendant’s
social history, (5) the defendant’s physical and mental health, and (6) the deterrence value
to the defendant and others. See State v. Trent, 533 S.W.3d 282, 291 (Tenn. 2017).
“If the seriousness of the offense forms the basis for the denial of alternative
sentencing, Tennessee courts have held that the circumstances of the offense as committed
must be especially violent, horrifying, shocking, reprehensible, offensive or otherwise of
an excessive or exaggerated degree, and the nature of the offense must outweigh all factors
favoring a sentence other than confinement.” Trotter, 201 S.W.3d at 654 (quotations
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omitted). In addition, the sentence imposed should be (1) “no greater than that deserved
for the offense committed,” and (2) “the least severe measure necessary to achieve the
purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), -103(4).
The party appealing a sentence bears the burden of establishing that the sentence was
improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts. Again, we review
a trial court’s sentencing determinations, including a denial of probation or another
alternative sentence, under an abuse of discretion standard, and grant a presumption of
reasonableness to within-range sentences reflecting an appropriate application of the
purposes and principles of the Sentencing Act. Caudle, 388 S.W.3d at 278-79.
In denying alternative sentencing, the trial court acknowledged the defendant was
eligible for probation under Tennessee Code Annotated section 40-35-303 because his
sentence was for less than ten years. However, the trial court determined probation was
not appropriate pursuant to Tennessee Code Annotated section 40-35-103(1)(B). The trial
court explained:
When I look at whether confinement is necessary, I do not find that
confinement is necessary to protect society by restraining a defendant who
has a long history of criminal conduct. That’s just not applicable. He has
the one prior similar, brandishing a gun on the roadways.
I also agree that subpart (c) does not apply as the defendant has not
been afforded any alternatives to incarceration in the past.
However, subpart (b) does apply, in the opinion of this [c]ourt, 40-35-
103 subpart (b). “Confinement is necessary to avoid depreciating the
seriousness of the offense.” I’m gonna (sic) quote State v. Travis, Tennessee
Supreme Court, 1981. “We must reiterate the fact that if probation is deemed
denied because solely of the nature of the offense, it would have to be clear
that the criminal act as committed would be described as especially violent,
horrifying, shocking, reprehensible, offensive, or otherwise of an excessive
or exaggerated degree, and it would be clear, therefore, that the nature of the
offense as committed outweighed all other factors delineated in our code
which might be favorable to a grant of probation.”
As I have stated, this is horrifying. I think it’s shocking, the idea that
a man just tries to play vigilante and impose the rules of the road as he sees
them. I think it’s reprehensible that an individual believes he knows better
than trained lawyers and sitting judges. I think it’s offensive that he engages
in actions that I would consider to be animalistic: removing shirts; following
people numerous miles; transferring rage from one individual to someone he
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doesn’t even know; transferring anger and rage at one D.A. to that D.A.’s
wife. I think his conduct indicates that we are dealing with a dangerous
individual who believes that he alone knows what justice is, and he alone is
going to enforce the laws appropriately. He is not an individual, in this
[c]ourt’s opinion, who is amenable to correction. He doesn’t think he’s done
anything wrong. How can you cure a problem that you won’t admit exists?
Amenability to correction is saying, “Hey, I’ve done wrong, I recognize it,
and I’m going to do things to change my behavior.” The first stage in
correcting a problem is admitting that the problem exists, and he refuses to
do so, and is not truthful, is not reasonable. And I do think that an individual
who’s out there doing these things and trying to take matters in their own
hands is a danger and a threat to society at large.
He threatens people with ethical conduct. He threatens people with
retaliation. He threatens people with guns. He just tears at a social compact.
...
....
I find that it is so aggravated an offense in the transfer of rage, that
three years on count one should be served in the Tennessee Department of
Correction[] as a standard Range I offender, credit for time served.
....
Having found that a prison sentence is warranted because of the
circumstances of the offense, I don’t know - I didn’t see a TBI certification
for eligibility for diversion, but I’ll give voice to it. And the bottom line is,
is that defendant’s attitudes, behaviors, and lack of remorse play against
application of diversion. And I’m also gonna (sic) find, just like the Travis
case, if it warrants prison, it is also such to an aggravated degree that the
circumstances of the offense outweighs anything else in favor of the
defendant, including his lack of criminal history.
I do not think any deterrent effect is justified in this case.
So the Parker and Electroplating factors, there are some, lack of
criminal history. He’s a man who people vouch for so he’s got a good social
history. His physical condition plays in his favor, but the bottom line is his
attitudes and his lack of remorse, his lack of any acceptance of responsibility
for any of this, his lack of candor before the [c]ourt, and the exaggerated
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nature of this case in transfer of rage to anyone who he comes across in life,
justify the denial of diversion as well.
Three years prison on count one, 11/29 suspended on count two,
concurrent. No fine is appropriate.
Upon our review, we agree with the reasoning of the trial court. The trial court
found the defendant’s actions were “horrifying” and he was not amenable to correction due
to his lack of remorse. As noted throughout the record, the defendant assaulted both Mr.
and Ms. Langford after briefly interacting with Ms. Langford on Paul Huff Parkway. The
defendant followed Ms. Langford for miles, used profanity and threatening gestures while
driving, engaged in a physical altercation with Mr. Langford during which he brandished
a gun, threatened to shoot Mr. Langford, and refused to end the encounter until police
arrived. The record also indicates that the defendant participated in a previous road rage
incident where he also brandished a gun and that the defendant threatened ADA Moyle and
his wife while this case was pending. In reaching its decision, the trial court also considered
the defendant’s credibility and determined the defendant lacked candor before the
court. See Souder, 105 S.W.3d at 608 (“Candor is a relevant factor in assessing a
defendant’s potential for rehabilitation, and the lack of candor militates against the grant
of” an alternative sentence.). A trial court’s findings of fact and credibility determinations
at sentencing are generally binding on this Court. State v. Parker, 932 S.W.2d 945, 956
(Tenn. Crim. App. 1996).
Thus, the record indicates the trial court carefully considered the defendant’s
amenability to correction, the circumstances of the offense, the defendant’s criminal
record, the defendant’s social history, the defendant’s physical and mental health, and the
deterrence value to the defendant and others before imposing a sentence in
confinement. Trent, 533 S.W.3d at 291. The trial court also made specific findings that
the circumstances of the defendant’s offense were horrifying and shocking. Trotter, 201
S.W.3d at 654. Accordingly, the record supports the trial court’s determination that
confinement was necessary to avoid depreciating the seriousness of the defendant’s
offense, and he is not entitled to relief.
Conclusion
For the aforementioned reasons, the judgments of the trial court are affirmed.
However, because the judgment forms do not mirror the convictions as charged in the
indictment, we remand for entry of corrected judgment forms to reflect the appropriate
conviction in count 1, for simple assault, and count 2, for aggravated assault.
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____________________________________
J. ROSS DYER, JUDGE
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