State of Tennessee v. Tywan Garcia Armstrong ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 22, 2009 at Knoxville
STATE OF TENNESSEE v. TYWAN GARCIA ARMSTRONG
Appeal from the Circuit Court for Marshall County
No. 08CR21 Robert Crigler, Judge
No. M2008-02837-CCA-R3-CD - Filed March 18, 2010
The Defendant, Tywan Garcia Armstrong, was convicted by a jury in Marshall County of
(Count 1) sale of a Schedule II Controlled Substance, a Class B Felony; (Count 2) delivery
of a Scheduled II Controlled Substance, a Class B felony; (Count 3) possession with the
intent to sell a Schedule II Controlled Substance, a Class B felony; (Count 4) possession with
the intent to deliver a Schedule II Controlled Substance, a Class B felony; and (Count 5)
possession of a deadly weapon with intent to employ it in the commission of an offense, a
Class E felony. In this appeal as of right, the Defendant argues that: (1) the trial court erred
in denying his motion to suppress evidence obtained from the search of his car; (2) the
evidence was insufficient to support his convictions for Counts 1, 2, and 5; and (3) the trial
court erred in refusing to apply the mitigating factors submitted by the Defendant at the
sentencing hearing. After reviewing the record, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
Affirmed.
D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and R OBERT W. W EDEMEYER, JJ., joined.
S. Craig Moore, Fayetteville, Tennessee, attorney for appellant, Tywan Garcia Armstrong.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant
District Attorney General, attorneys for appellee, State of Tennessee.
OPINION
The Undercover Operation
This case arose from an undercover drug operation where a confidential informant,
Wanda Griffin, agreed to call and ask the Defendant to meet her so that she could purchase
some cocaine.1 Prior to her cooperation with the Drug Task Force (DTF), Ms. Griffin was
a narcotics user. After a brief stay in the intensive care unit for her drug addictions, she
volunteered to work with the DTF in April 2006. On April 26, 2007, Ms. Griffin was
working with three members of the Seventeenth Judicial District DTF: Assistant Director
Tim Miller, Special Agent Shane George, and Special Agent Billy Osterman. All three
agents testified at trial.
Ms. Griffin met with the agents at approximately 3:30 in the afternoon on April 26,
2007 in Lewisburg, Tennessee. Agent Osterman searched Ms. Griffin and her vehicle and
gave her a “body wire,” which transmitted a signal to a receiver in Agent Osterman’s vehicle.
The signal from Ms. Griffin’s transmitter was amplified through a piece of equipment in the
trunk of Ms. Griffin’s car. Agent Osterman was able to listen and record everything
transmitted through the signal to the receiver. The agents also equipped Ms. Griffin with a
backup recording device, which was strictly a digital recorder with a microphone that could
not be turned off by Ms. Griffin.
Agent Osterman gave Ms. Griffin one hundred and fifty dollars in the form of a one
hundred dollar bill, a twenty dollar bill, and three ten dollar bills. Before he presented her
with the money, Agent Osterman recorded the serial number from each bill into his notes.
Once Ms. Griffin was issued the money for the undercover operation, the backup recorder
was turned on and was not turned off until she returned with the drugs. At that time, Ms.
Griffin called a cellular telephone number and talked with a person whom she believed was
the Defendant. According to the digital recording, when the Defendant answered, she asked
to meet the Defendant at “Berlin” so that she could purchase a “bill fifty.” 2 The Berlin Store
is located on Franklin Pike past the airport.
After Ms. Griffin made the telephone call to the Defendant, Agent Osterman ensured
that all of the recording equipment was working properly before she left to meet the
Defendant. When Ms. Griffin arrived at the predetermined meeting location, she called the
Defendant and told him that she was waiting for him. A few minutes later, the Defendant
1
Ms. Griffin was paid forty dollars for her cooperation.
2
Ms. Griffin testified that a “bill fifty” means a hundred and fifty dollars worth of crack cocaine.
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drove by Ms. Griffin’s car and “tooted the horn.” Ms. Griffin followed the Defendant, who
was driving a black Ford Taurus, to Holly Lane Road. Once on Holly Lane Road, the
Defendant threw a crumpled newspaper out of the driver’s side window. Ms. Griffin got out
of her car, threw one hundred and fifty dollars into the Defendant’s lap, and picked up the
newspaper. As Ms. Griffin was returning to her car, the Defendant said, “It’s about 30 short
. . . I’ll catch you later.”3 Ms. Griffin responded by saying, “give me a call.” Ms. Griffin
drove back to the meeting place with Agent George following her in a separate vehicle.
According to Ms. Griffin, this transaction took place during the daylight hours, and
she was within six feet of the Defendant when she gave him the money and retrieved the
newspaper. Ms. Griffin testified that she knew the Defendant as “Monkey” prior to her
agreement with the DTF. She stated that she recognized him and his voice because she
talked with him “hundreds of times” and that she had met the Defendant at this location prior
to this transaction. Each time in the past, Ms. Griffin would drive to the Berlin store, and the
Defendant would drive by and “toot” his horn. She would then follow him to another
location.
Agent Osterman testified that he followed Ms. Griffin all the way to the Berlin store
and observed her pulling into the gravel parking lot where she called the Defendant the
second time. Agent Osterman went past the parking lot and “set up a surveillance system
where he could see through to the gravel parking lot” while Agent Miller continued north and
set up surveillance and Agent George went south. Agent Miller informed the others when
he saw the black Ford Taurus pass his location and head towards the informant. Once Ms.
Griffin began to follow the Defendant, Agent Osterman followed both of the vehicles until
they pulled onto Holly Lane Road.
After the drug transaction, Agent Osterman followed the Defendant for several miles.
He testified that he saw the Defendant’s profile when the Defendant turned left onto Jerre
Lane; however, he was unable to see the passenger and could not tell whether the passenger
was black or white. Agent Osterman stated that the Defendant’s black Ford Taurus had a
drive-out tag in the upper left corner of the rear glass window and that the car was damaged
on the rear driver side door. When Agent Miller began following Agent Osterman and the
Defendant, Agent Osterman went back to the meeting place so that he could collect the
evidence, “debrief” Ms. Griffin, and search her car and person. When he arrived, Agent
Osterman found the newspaper, opened it, and saw what he recognized to be crack cocaine.4
3
The Defendant only gave her one hundred and twenty dollars worth of crack cocaine.
4
The substance was later confirmed as .5 grams of cocaine base or crack cocaine.
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Agent Osterman searched Ms. Griffin and her vehicle, but he did not find any drugs or
money in her car or on her person.
The Traffic Stop
Agent Miller continued following the Defendant until the Defendant stopped on Jerre
Lane. Once on Jerre Lane, he saw the Defendant and the passenger get out of the car and go
inside a house. Twenty minutes later, the Defendant and the passenger came out of the house
and got back into the car. As Agent Miller was driving towards Jerre Lane, he observed the
Defendant roll through a stop sign and turn right towards Highway 417.5 He followed the
vehicle onto Old Columbia Highway, where the Defendant then “took off at a high rate of
speed.”
Agent Miller caught up with the Defendant and turned on his blue lights. The
Defendant pulled over onto the side of the road. Agent Miller got out of his car, approached
the Defendant’s car, and asked for his driver’s license. Agent Miller testified that he smelled
marijuana when he approached the vehicle and that the Defendant and the passenger
appeared nervous. He asked the Defendant to get out of the car and searched the Defendant
for weapons. He asked if he could search the vehicle, but the Defendant did not consent to
the search. When asked whether there had been any marijuana in the car, the Defendant
stated that there had been marijuana in the car recently.
When Agent Miller explained that he had probable cause to search the vehicle, the
Defendant responded by saying that there was a gun in the car under the driver’s seat. At this
point, the passenger was instructed to get out of the car. Once the passenger was out of the
car, Agent Miller and Agent George searched the vehicle and found: marijuana residue in the
carpeting; a loaded, semiautomatic pistol under the driver’s seat; pieces of newspaper
between the seats and the floorboard; several packages of what appeared to be crack cocaine 6
wrapped in newspaper under the headliner of the vehicle; and a loaded, 12-gauge pump
shotgun in the trunk. Agent Miller also found one hundred and seventy dollars on the
Defendant’s person. When Agent Miller checked the serial numbers on the money, he found
that one hundred and fifty dollars matched the serial numbers on the money given to Ms.
Griffin. He also took down the Defendant’s cell phone number, which he confirmed was the
same cellular telephone number that the informant called to set up the undercover operation.
5
At some point, Agent George began following the Defendant and Agent Miller.
6
The substance was later confirmed as 3.0 grams of cocaine base or crack cocaine.
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The State established the chain of custody for all of the evidence obtained in this case
through the testimony of Agent Osterman, Agent Miller, Director Tim Lane of the
Seventeenth Judicial District DTF, and Special Agent John Scott of the Tennessee Bureau
of Investigation, Nashville Crime Laboratory. We will not recount the substance of their
testimony regarding the chain of custody because it was properly established in this case and
the Defendant does not assert otherwise.
The Defendant called two witness in his defense. Bessie Claude, the Defendant’s
mother, testified that she has never called her son “Monkey” or heard anyone call her son
“Monkey.” On cross-examination, she admitted that she does not live in Lewisburg,
Tennessee; therefore she could not be certain that other people did not call her son
“Monkey.” Shavonda Polk, the Defendant’s girlfriend, testified that the Defendant’s
nickname is “Ace,” not “Monkey,” and that the Defendant has “Ace” tattooed on the back
of his neck. She also stated that the Defendant does not own or drive a black Ford Taurus.
However, on cross-examination she admitted that her relationship with the Defendant was
inconsistent and that she could not be certain that he did not own or drive a black Ford
Taurus.
ANALYSIS
Motion to Suppress
The Defendant argues that the trial court erred in denying his motion to suppress the
evidence found in his vehicle and his statement to Agent Miller because the traffic stop and
resulting search were unlawful. The State contends that Agent Miller had probable cause to
stop the Defendant’s car because he was speeding and that once he smelled the marijuana,
he had probable cause to search the car.
Agent Miller was the only witness who testified at the suppression hearing. He
recounted the substance of the drug deal as discussed above, and he discussed the traffic stop
in further detail. He stated that he stopped the Defendant for rolling through the stop sign
and speeding because he did not want the Defendant to know that Ms. Griffin was a
confidential informant. He recounted that once he approached the vehicle, he noticed a
“strong odor of marijuana emitting from the vehicle.” Agent Miller testified that he told the
Defendant that he had probable cause to search the car based upon his detection of a
marijuana smell and that the Defendant admitted that marijuana had been in the car recently.
Agent Miller testified that the Defendant stated that he understood and disclosed that there
was a weapon under the driver’s seat. In searching for the weapon, Agent Miller noticed
marijuana residue in the carpeting, but he could not see the weapon from the front because
it “[l]ooked like the construction of the seat had been manipulated into a holster . . . where
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the weapon would slide in under the seat.” In order to retrieve the gun, Agent Miller had to
search from the backseat of the car under the driver’s seat. After he secured the weapon, he
continued to search the car and even “[s]tuck [his] hands up in the headliner of the vehicle.”
In the headliner, he found “four to eight bags containing crack cocaine individually
packaged.”
Agent Miller testified that after he found the evidence in the car, he advised the
Defendant of his Miranda rights, and the Defendant waived his rights. Agent Miller stated
that the Defendant admitted that he smoked crack cocaine on occasion and that he had been
involved in “illegal distribution of crack cocaine for at least a year or more.” The Defendant
admitted ownership of the pistol, the crack cocaine, and the shotgun found in the trunk. The
Defendant also told him that he was purchasing all of his crack cocaine from Colby Reynolds
and that he would like to work as a confidential informant. After the Defendant agreed to
cooperate, Agent Miller let the Defendant go and exchanged telephone numbers with him,
but the Defendant never called him.
At the conclusion of the hearing, the trial court found that Agent Miller had probable
cause to stop the Defendant because the Defendant ran a stop sign and that Agent Miller had
probable cause to search the car when he noticed the odor of marijuana. The trial court
further stated that Agent Miller was “entitled to arrest the [D]efendant after [he] observed
the marijuana,” and that once the Defendant “alerted them to a loaded weapon under the seat
which had been recovered” he had the right to seize the car and do an inventory search of the
vehicle. Therefore, the trial court concluded that, pursuant to the inevitable discovery
doctrine, the shotgun found in the trunk and the “four to eight bags [of crack cocaine] found
in the headliner would have ultimately been found.” The trial court also noted the
Defendant’s statement to Agent Miller, but the trial court stated that the “voluntariness of
that statement [was] not attacked or not at issue in this case.”
A trial court’s findings of fact on a motion to suppress are conclusive on appeal unless
the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000).
Questions about the “credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Both proof presented at the
suppression hearing and proof presented at trial may be considered by an appellate court in
deciding the propriety of the trial court’s ruling on a motion to suppress. State v. Henning,
975 S.W.2d 290, 299 (Tenn. 1998); State v. Perry, 13 S.W.3d 724, 737 (Tenn. Crim. App.
1999). However, the prevailing party “is entitled to the strongest legitimate view of the
evidence adduced at the suppression hearing as well as all reasonable and legitimate
inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Furthermore,
an appellate court’s review of the trial court’s application of law to the facts is conducted
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under a de novo standard of review. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)
(citations omitted).
The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect against unreasonable searches and seizures. Any
“warrantless search or seizure is presumed [to be] unreasonable, and evidence discovered as
a result thereof is subject to suppression unless the State demonstrates by a preponderance
of the evidence that the search or seizure was conducted pursuant to one of the narrowly
defined exceptions to the warrant requirement.” State v. Simpson, 968 S.W.2d 776, 780
(Tenn. 1998). “Exceptions to the warrant requirement include searches incident to arrest,
plain view, hot pursuit, exigent circumstances, and others, such as the consent to search.”
State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007) (citing State v. Cox, 171 S.W.3d 174, 179
(Tenn. 2005)). Additionally, a police officer may make “an investigatory stop based upon
reasonable suspicion, supported by specific and articulable facts, that a criminal offense has
been or is about to be committed.” State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000); Terry
v. Ohio, 392 U.S. 1, 20-21 (1968).
In this case, the trial court found that Agent Miller observed the Defendant running
through a stop sign, which is a Class C misdemeanor. See Tenn. Code Ann. § 55-8-149. Our
supreme court has stated that
[T]he protection afforded by [a]rticle I, section 7 of the
Tennessee Constitution is co-extensive with the protection
afforded by the Fourth Amendment to the United States
Constitution. Accordingly, a stop based upon probable cause is
valid under the Tennessee Constitution, without regard to the
actual subjective motivations of police officers.
State v. Vineyard, 958 S.W.2d 730, 731 (Tenn. 1997). In so holding, the Tennessee supreme
court adopted the “Supreme Court’s interpretation of the Fourth Amendment in [Whren v.
United States, 517 U.S. 806 (1996)].” Vineyard, 958 S.W.2d at 736. Regardless of Agent
Miller’s motivation for stopping the Defendant, he had probable cause to stop the Defendant
when he observed him running through the stop sign. See State v. Whitney Ann Graves, No.
M2007-02415-CCA-R3-CD, 2008 WL 5263431, at *3 (Tenn. Crim. App. Dec. 17, 2008),
perm. app. denied (Tenn. May 4, 2009).
When Agent Miller smelled marijuana in the Defendant’s vehicle, he had probable
cause to search the vehicle pursuant to the exigent circumstances relating to the inherent
mobility of automobiles. Hicks v. State, 534 S.W.2d 872, 873-74 (Tenn. Crim. App. 1975)
(holding that the smell of marijuana emanating from the defendant’s car provided the officer
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with probable cause to search the vehicle given the inherent mobility of automobiles); see
also State v. Saine, 297 S.W.3d 199, 207 (Tenn. 2009) (“[T]he automobile exception does
not require a separate finding of exigency in addition to a finding of probable cause under
the United States Constitution.” (quoting Maryland v. Dyson, 527 U.S. 465, 466-67 (1999))).
“The rationale for the automobile exception [to the warrant requirement] is two-fold. First,
it is often impractical for officers to obtain search warrants in light of the inherent mobility
of automobiles. Second, individuals have a reduced expectation of privacy in their
automobiles.” Saine, 297 S.W.3d at 207 (citations omitted).
The scope of Agent Miller’s search was “defined by the object of the search and the
places in which there is probable cause to believe that it may be found.” United States v.
Ross, 456 U.S. 798, 824 (1982); see also State v. McCrary, 45 S.W.3d 36 (Tenn. Crim. App.
2000). Here, Agent Miller was searching for marijuana, guns, and any evidence of the
undercover drug buy. Consequently, Agent Miller’s probable cause to search extended to
all parts of the vehicle, including the headliner and the trunk. Ross, 456 U.S. at 824; see also
State v. Ricky Allen Frazier, No. E2003-02853-CCA-R3-CD, 2004 WL 1541306, at *5
(Tenn. Crim. App. July 9, 2004) (“If probable cause justifies a search of a vehicle, it justifies
a search of every part of the vehicle, including the trunk.” (citing Ross, 456 U.S. at 823-24)).
Following our review, we conclude that the trial court did not abuse its discretion in denying
the Defendant’s motion to suppress.
Sufficiency
The Defendant argues that the evidence was insufficient to convict him of Counts 1
and 2, sale and delivery of a Schedule II Controlled Substance. The Defendant states that the
proof was not sufficient to show that the Defendant was driving the car at the time of the
drug deal, and the one person who identified the Defendant was an unreliable confidential
informant. The Defendant also argues that the evidence was insufficient to convict him of
Count 5, possession of a deadly weapon with intent to employ it in the commission of an
offense. He contends that Ms. Griffin did not state that she saw a gun or was threatened in
any way. Moreover, the Defendant never got out of the car, and the weapons were not in a
location where they could have been retrieved quickly. The State argues that the evidence
was sufficient to convict the Defendant.
An appellate court’s standard of review when a defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The
appellate court does not reweigh the evidence; rather, it presumes that the jury has resolved
all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
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of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978).
Questions regarding witness credibility, conflicts in testimony, and the weight and
value to be given to evidence were resolved by the jury. See State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “A verdict of guilt removes the presumption of innocence and replaces
it with a presumption of guilt, and [on appeal] the defendant has the burden of illustrating
why the evidence is insufficient to support the jury’s verdict.” Id.; State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of direct and circumstantial
evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).
Counts 1 and 2
The convictions of selling and delivering .5 grams or more of a cocaine base requires
proof that the Defendant knowingly sold and delivered a controlled substance. Tenn. Code
Ann. § 39-17-417(a)(2)(3). The evidence in this case relating to Counts 1 and 2 was
overwhelming. Ms. Griffin and all three of the agents identified the Defendant at trial as the
person who provided the drugs in the undercover drug operation. We do note that Ms.
Griffin was a narcotics user and was paid for her cooperation. However, she was followed
by the agents at all times, and her conversations with the Defendant were recorded
throughout the entire undercover operation. More importantly, the jury chose to accredit her
testimony. Ms Griffin and the agents confirmed that she called the Defendant’s cellular
telephone number to set up the drug deal, and Agent Miller testified that the cellular
telephone number that the Defendant gave him was the same number that Ms. Griffin used
to call the Defendant. Agents recovered one hundred and seventy dollars from the
Defendant, one hundred and fifty of which corresponded to the money given to Ms. Griffin.
Although there was some discussion regarding the fact that the Agents thought the
Defendant’s name was Talvin Armstrong, the agents were clear that they knew the Defendant
as “Monkey” and that they were certain that “Monkey” was Tywan Armstrong. Following
our review, although we do note that these convictions were merged at sentencing, we
conclude that the evidence was sufficient to support his convictions in Counts 1 and 2.
Count 5
The conviction of Count 5 in the indictment requires proof that the Defendant
possessed a deadly weapon with the intent to “employ it in the commission of or escape from
an offense.” Tenn. Code Ann. § 39-17-1307(c)(1) (2006). In order to convict the Defendant
of this offense, the State had to prove that the Defendant had the appropriate intent and that
he either possessed the weapon or that he knowingly had the “power and the intention at a
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given time to exercise dominion and control over [the weapon], either directly or through
others.” State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981) (citations
omitted).
Whether the Defendant had the appropriate intent and actually possessed or
constructively possessed any weapons during the commission of the felony was for the jury
to determine. State v. Steven D. Pittman, No. M199900320-CCA-R3-CD, 2000 WL 374755,
at *3 (Tenn. Crim. App. April 7, 2000), perm. app. denied (Tenn. July 31, 2000) (citations
omitted). The weapons involved were loaded, and they were found under the driver’s seat
and in the trunk of the car. According to the testimony presented at the suppression hearing
and at trial, the gun under the driver’s seat was in a makeshift holster that was wedged into
the construction of the seat. The Defendant knew where the gun was located because he told
Agent Miller how to retrieve the gun. The Defendant and his car were watched from the time
he arrived at the drug buy until he was arrested. The agents did not observe the Defendant
removing weapons or bringing weapons to the vehicle after the undercover operation; thus,
it is reasonable to believe that whatever was inside the car at the time of his arrest was in the
car at the time of the commission of the felony. The loaded weapon was within the
Defendant’s reach, and he knew how to retrieve the weapon; these facts together “permit[]
a reasonable inference that, if necessary, [the] Defendant was prepared to use the gun” in the
commission of the felony. See State v. David Wayne Bernard, No. E2005-00852-CCA-R3-
CD, 2006 WL 1063687, at *6 (Tenn. Crim. App. Apr. 21, 2006) (upholding conviction for
similar offense when gun was found in trunk of vehicle). Accordingly, we conclude that the
evidence was sufficient to support his conviction in Count 5.
Sentencing
The Defendant argues that his sentence should be reduced because the trial court did
not apply the mitigating factors suggested by the Defendant. The State argues that the trial
court acted within its discretion in refusing to apply the submitted mitigating factors.
An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the
Sentencing Commission Comments to this section note, on appeal the burden is on the
Defendant to show that the sentence is improper. This means that if the trial court followed
the statutory sentencing procedure, made findings of fact that are adequately supported in the
record, and gave due consideration and proper weight to the factors and principles that are
relevant to sentencing under the 1989 Sentencing Act, the court may not disturb the sentence
even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991).
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However, “the presumption of correctness which accompanies the trial court’s action
is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate review,
[T]he trial court must place on the record its reasons for
arriving at the final sentencing decision, identify the
mitigating and enhancement factors found, state the
specific facts supporting each enhancement factor found,
and articulate how the mitigating and enhancement
factors have been evaluated and balanced in determining
the sentence.
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994) (citation omitted); see Tenn. Code Ann.
§ 40-35-210(e).
The Defendant committed this offense on April 26, 2007; thus, he was sentenced
under the revised sentencing act as enacted by the Tennessee General Assembly in 2005.
The act provides that:
(c) The court shall impose a sentence within the range of
punishment, determined by whether the defendant is a mitigated,
standard, persistent, career, or repeat violent offender. In
imposing a specific sentence within the range of punishment, the
court shall consider, but is not bound by, the following advisory
sentencing 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
(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.
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Tenn. Code Ann. § 40-35-210(c)(1)-(2).
The weight to be afforded an enhancement or mitigating factor is left to the trial
court’s discretion so long as its use complies with the purposes and principles of the 1989
Sentencing Act and the court’s findings are adequately supported by the record. Id. § (d)-(f);
State v. Carter, 254 S.W.3d 335, 342-43 (Tenn. 2008). “An appellate court is therefore
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 . . . the Sentencing
Act.” Carter, 254 S.W.3d at 346. Accordingly, on appeal we may only review whether the
enhancement and mitigating factors were supported by the record and whether their
application was not otherwise barred by statute. Id.
In conducting its de novo review, the appellate court must consider (1) the evidence,
if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the
principles of sentencing and arguments as to sentencing alternatives, (4) the nature and
characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors,
(6) any statement that the defendant made on his own behalf, (7) the defendant’s potential
for rehabilitation or treatment, and (8) any statistical information provided by the
Administrative Office of the Courts as to sentencing practices for similar offenses in
Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Ashby, 823 S.W.2d at 168;
State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).
After reviewing the record, we conclude that the trial court considered the appropriate
sentencing principles and all relevant facts and circumstances in the Defendant’s case. Thus,
we will review the trial court’s sentencing decision in this case under a de novo standard of
review with a presumption that the trial court’s sentencing decisions were correct.
The State submitted the following two enhancement factors: (1) the defendant has a
previous history of criminal convictions or criminal behavior, in addition to those necessary
to establish the appropriate range; and (10) the defendant had no hesitation about committing
a crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114(1), (10). The
trial court applied enhancement factor 1 but declined to apply enhancement factor 10. In
applying enhancement factor 1, the trial court noted all of the Defendant’s previous criminal
convictions and criminal conduct. The Defendant does not challenge the imposition of the
enhancement factor; therefore, we will not discuss the court’s decisions on this issue other
than to say that the record supports the trial court’s application of the enhancement factor.
The Defendant requested that the trial court consider the Defendant as an especially
mitigated offender and also submitted the following three mitigating factors:
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(1) The defendant’s criminal conduct neither caused nor
threatened serious bodily injury;
(7) The defendant was motivated by a desire to provide
necessities for the defendant’s family or the defendant’s self;
(13) Any other factor consistent with the purpose of [the
Tennessee Criminal Sentencing Reform Act of 1989, including
but not limited to the fact that Defendant has sought drug
rehabilitation]
Tenn. Code Ann. § 40-35-113(1), (7), (13).
The trial court considered but declined to apply the three mitigating factors submitted
by the Defendant. In regards to mitigating factor 1, the trial court stated that “the law does
not recognize that the [D]efendant’s conduct neither caused nor threatened serious bodily
injury.” The court compared this mitigating factor with enhancement factor 10 submitted by
the state and stated that the legislature has already taken the dangerousness of cocaine into
account when setting the range of sentencing for this particular offense. In declining to apply
mitigating factor 7, the court stated:
I don’t find [that] the proof brings that out. Clearly, every time
somebody commits a crime, you can argue that in every case
where there’s some element or profit involved, and I don’t
believe that mitigating factor is broad enough to cover that. You
have to prove something more, that the [D]efendant was
motivated by [a] desire to provide necessities for the
[D]efendant’s family or the [D]efendant’s self. I don’t believe
that the proof rises to that level.
In declining to apply the final mitigating factor, the trial court noted that the Defendant’s
attempts at rehabilitation conflicted with a scheduled court date in this case. Also, the trial
court stated that “seven days7 [of drug rehabilitation] given that kind of eight ball every other
day drug usage is not sufficient to make that mitigating factor or to be - - no disrespect,
would not be sufficient [rehabilitation] for that kind of drug problem.”
7
The record indicates that the Defendant completed a fourteen day treatment program at the Plateau
Mental Health, New Leaf Recovery Center.
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In sentencing the Defendant, the trial court merged Count 2 and Count 4 with Count
1 and Count 3, respectively. After denying alternative sentencing and declining to afford any
weight to the submitted mitigating factors, the trial court imposed sentences in the middle of
the range for all of the Defendant’s convictions, ordering all sentences to be served
concurrently. In regards to Counts 1 and 3, both Class B felonies, the trial court imposed
sentences of 10 years out of a possible sentence of 8 to 12 years. In regards to Count 5, a
Class E felony, the trial court imposed a sentence of 1 year and 6 months out of a possible
sentence of 1 to 2 years.
The record reflects that the trial court followed the applicable sentencing principles
and appropriately found the existence of applicable enhancement factors. The record shows
that the trial court gave proper consideration, but no weight, to any proposed mitigating
factors. Under the revised sentencing act, this court may not review the weight afforded the
enhancing and mitigating factors provided the trial court followed the principles of
sentencing. Given that the enhancement factor was supported by the record and that the trial
court considered the mitigating factors as required, we conclude that the trial court followed
the appropriate sentencing principles in this case. Accordingly, we affirm the Defendant’s
sentences.
CONCLUSION
In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.
________________________________
D. KELLY THOMAS, JR., JUDGE
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