State of Tennessee v. Darius Henderson

03/04/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 5, 2022 Session
STATE OF TENNESSEE v. DARIUS HENDERSON
Appeal from the Circuit Court for Madison County
No. 20-441 Donald H. Allen, Judge
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No. W2020-01725-CCA-R3-CD
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Defendant, Darius Henderson, was convicted following a jury trial of one count of theft of
property valued over $2,500 but less than $10,000 (Count 1) and one count of evading
arrest while operating a vehicle (Count 2). Based on Defendant’s prior Tennessee
convictions and a Georgia conviction, the trial court sentenced Defendant as a Range III
persistent offender to consecutive sentences of twelve years in Count 1, and six years in
Count 2. On appeal, Defendant argues that the trial court erred in sentencing him as a
Range III persistent offender because he had only four prior Tennessee felonies and the
State did not submit proof that Defendant’s Georgia conviction qualified as a felony
conviction in a foreign jurisdiction. See T.C.A. §40-35-107. Following our review, we
reverse the judgment of the trial court and remand for Defendant to be sentenced as a Range
II offender.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and J. ROSS DYER, JJ., joined.
Kendall Stivers Jones (on appeal), Franklin, Tennessee, and Greg Gookin (at trial),
Jackson, Tennessee, for the appellant, Darius Henderson.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Matthew A. Floyd,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
Trial Proof
This case arises from the theft of Anthony McCurry’s black 2008 Nissan Altima
(“the Altima”) from a Citgo gas station in Jackson, Tennessee on December 19, 2018. Mr.
McCurry testified that he parked the Altima at the gas pumps, behind another vehicle,
before he went inside the Citgo store. According to Mr. McCurry’s testimony, he was
inside the store “[m]aybe two minutes, three minutes.” When Mr. McCurry exited the
store, he began to talk with a friend, standing with his back toward the Altima. When he
turned back toward the pump where he had left the Altima, it was gone. Another customer
told Mr. McCurry that someone had gotten into the Altima and had driven it away. That
customer drove Mr. McCurry in the direction that the Altima had been driven, and caught
up with the Altima. Mr. McCurry called 9-1-1 while he and the customer followed the
Altima.
When the traffic was “backed up,” Mr. McCurry got out of the customer’s car and
approached the Altima. He unsuccessfully tried to open the door of his car, and the Altima
“sped off through the light.” Mr. McCurry was unable to follow the Altima. Mr. McCurry
then went to a nearby Huck’s Gas Station and spoke with two police officers about the
Altima. Mr. McCurry testified that he did not know Defendant, nor had he given Defendant
permission to drive his car.
Officer John Hasz of the Jackson Police Department was on patrol near Highland
Avenue when he received a call over the radio that a stolen 2008 Nissan Altima was headed
toward his direction. Soon after, Officer Hasz observed a person chasing a vehicle that
matched that description. Officer Hasz got behind the Altima and initiated his blue lights.
When the Altima did not pull over, Officer Hasz activated his siren. Officer Hasz pursued
the Altima for approximately six minutes until the Altima was blocked by traffic. Officer
Hasz approached the vehicle and observed Defendant in the driver’s seat of the Altima,
with no other passengers, removed Defendant from the vehicle and took him into custody.
The Altima was returned to Mr. McCurry soon after.
Based on the foregoing evidence, the jury convicted Defendant of both counts
charged in the indictment.
Sentencing Hearing
On September 5, 2019, the State filed a notice of request for enhanced punishment
based on Defendant’s prior record, and on July 27, 2020, the State filed a motion for
consecutive sentencing. At the sentencing hearing, the State’s only proof was the
presentence report, which was entered without objection. The presentence report reflected
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Defendant’s four prior felony convictions in Tennessee, including: (1) theft of property
over $1,000, a Class D felony at the time of the conviction in 2016; (2) theft of property
over $500 but less than $1,000, a Class E felony at the time of the conviction in 2013; (3)
statutory rape, a Class E felony; and (4) aggravated robbery, a Class B felony.
Defendant testified that he had been in jail since December 2018 and explained that
he had been diagnosed as comorbid schizophrenic with social anxiety disorder. Defendant
testified that he also had a drug abuse problem with methamphetamine and marijuana.
According to Defendant’s testimony, he was not taking his mental health medications at
the time of the offense but had instead been using drugs.
The State argued that Defendant was a Range II offender for purposes of sentencing
because he had four prior felony convictions in Tennessee. The trial court inquired about
Defendant’s 2016 Georgia convictions for “Criminal Damage to Property – 2nd Degree,
Terroristic Threats and Simple Battery”, which also appeared in the presentence report. In
response, the State presented a copy of the indictments in Defendant’s Georgia case, as
well as a certified copy of the resulting convictions. The convictions reflected that the
damage “exceeded $500” and the offenses all occurred on or about July 22, 2013. The
indictment and conviction were for “criminal damage to property in the second degree, in
violation of O.C.G.A. § 16-7-23.” The State then argued that Defendant’s Georgia
convictions would have been misdemeanors under Tennessee law, based upon the State’s
reading of the indictment in the matter and the elements of the Georgia statute. The trial
court agreed that the convictions for terroristic threats should not be used to establish
Defendant’s range, but took the issue of sentencing range regarding the foreign convictions
under advisement and rescheduled the sentencing hearing for September 14, 2020.
When the trial court reconvened on September 14, 2020, Defendant called Temeka
Patterson to testify on his behalf. Ms. Patterson testified that she had been friends with
Defendant since 2006 and that she knew that he had mental health issues. Defendant
submitted into evidence, without objection, a letter from Pathways, which stated that
Defendant had been diagnosed with “unspecified schizophrenia spectrum, another
psychotic disorder,” and had seen a nurse practitioner for medication. The letter further
noted that Defendant was an active patient at the time of his sentencing hearings.
The trial court explained that it had considered the requisite sentencing criteria
under Tennessee Code Annotated section 40-35-210 and found that Defendant had four
prior felony convictions in Tennessee. However, the trial court announced that it would
sentence Defendant as a Range III offender because it considered Defendant’s foreign
conviction out of Georgia for “criminal damage to property in the second degree” to qualify
as a felony in Tennessee. In pertinent part, the trial court stated the following:
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According to these judgments, Defendant received a total effective
sentence of four years and was placed on probation. Now, I did
notice, according to these judgments, he was facing 25 years in
prison for those terroristic threats and three counts of terroristic
threats, criminal damage to property, which was about, I think,
$2,500, which would be a felony in Tennessee. So, certainly, I find
that to be a felony in Tennessee because it involved restitution. It
says to pay restitution in the amount of $2,010.95 and stay away
from the Cash America Pawn Shop. So, again, there’s no question
in my mind, it says he received a four-year sentence, to serve 60 days
in jail, and was placed on probation for the balance.
The trial court ordered Defendant to serve twelve years as a Range III offender on Count
1 for theft of property valued at $2,500-$10,000, a Class D felony, and six years to serve
on Count 2 for evading arrest in a vehicle, a Class E felony. Both sentences were maximum
in-range sentences and were ordered to run consecutively to each other.
Defendant filed a timely motion for new trial in which he raised as error the trial
court’s finding that he was a Range III offender rather than a Range II offender.
Defendant’s argument challenged the trial court’s finding that his 2016 Georgia conviction
for “criminal damage to property in the second degree” would have qualified as a felony
in Tennessee at the time of the offense.
At the hearing on the motion for new trial on December 3, 2020, the trial court found
that it had properly determined that Defendant’s Georgia conviction would have qualified
as a felony in Tennessee, and stated the following in denying the motion for new trial:
He was convicted of criminal damage to property in the second
degree and received a four-year sentence. I did determine that that
was a felony in the State of Tennessee because of the fact that the
restitution, according to the judgments and according to the plea
agreement, the restitution was to be paid in the amount of $2,010.95.
That was the amount, which would indicate that that was an amount
greater than $1,000.
So, certainly, that would appear to be equivalent to, I guess, our
vandalism of property over $1,000, which is a felony in the State of
Tennessee. That’s what I found, and I’ll stand by what I said at the
sentencing hearing with respect to that being a felony conviction.
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I mean, even the judgments indicate the final disposition was a
felony with probation out of the State of Georgia.
This timely appeal follows.
Analysis
On appeal, Defendant argues that the trial court erred when it sentenced him as a
Range III offender when he had only four prior felony convictions in Tennessee.
Defendant specifically argues that, in sentencing him as a Range III offender, the trial court
erred in its application of Tennessee Code Annotated section 40-35-210 by finding that the
State had satisfied its burden of proving that Defendant’s foreign conviction would have
constituted a felony in Tennessee. The State argues that the trial court did not err in finding
that Defendant was a Range III offender because the trial court correctly determined that
Defendant’s Georgia conviction constituted a felony in Tennessee. We agree with
Defendant.
The trial court may sentence a defendant as a Range III persistent offender when the
defendant has received “any combination of five (5) or more prior felony convictions
within the conviction class or higher or within the next two (2) lower felony classes, where
applicable. . . .” T.C.A. § 40-35-107(a)(1). “Prior convictions” include “convictions under
the laws of any other state, government or country that, if committed in this state, would
have constituted an offense cognizable by the laws of this state.” Id. § 40-35-107(b)(5).
In the event that a felony from a jurisdiction other than Tennessee is not a named felony in
this state, the elements of the offense shall be used by the Tennessee court to determine
what classification the offense is given.” Id. A defendant who is found by the court beyond
a reasonable doubt to be a persistent offender shall receive a sentence within Range III. Id.
§ 40-35-107(c). The State bears the burden of establishing the appropriate sentencing
range beyond a reasonable doubt. See State v. Vick, 242 S.W.3d 792, 796 (Tenn. Crim.
App. 2007).
A Range II multiple offender is a defendant who has received:
(1) A minimum of two (2) but not more than four (4) prior felony
convictions within the conviction class, a higher class or within
the next two (2) felony classes, where applicable; or
(2) One (1) Class A prior felony conviction if the defendant’s
conviction offense is a Class A or B felony.
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T.C.A. § 40-35-106(a)(1), (2). A prior conviction is a conviction that has been adjudicated
prior to the commission of the more recent offense for which sentence is to be imposed.
State v. Blouvett, 904 S.W.2d 111, 113 (Tenn. 1995); see also State v. Joseph John Henry
Morrell, No. E1999-00924-CCA-R3-CD, 2000 WL 218188, at *3 (Tenn. Crim. App, at
Knoxville, Feb. 25, 2000).
The foreign conviction analysis involves three parts. First, a trial court must
determine whether the foreign conviction was a “cognizable” offense under Tennessee law.
See T.C.A. §§ 40-35-106(b)(5), -107(b)(5), -108(b)(5). Second, a trial court must
determine whether the foreign conviction was a “named felony” in Tennessee. To qualify
as a “named felony,” a foreign felony conviction must have the exact same name as a crime
that is currently a felony in Tennessee. Id. § 40-35-106(b)(5). Finally, if the foreign felony
is not a named felony in Tennessee, a trial court is required to then analyze the elements of
the foreign felony at the time of the defendant’s conviction, to determine whether it “was
analogous to a felony offense under Tennessee’s law as it existed at the time it was
committed.” Vick, 242 S.W.3d at 795 (citing State v. Brooks, 968 S.W.2d 312, 313-14
(Tenn. Crim. App. 1997)). The length of sentence a defendant receives for an out-of-state
conviction “is not determinative of what grade of felony the out-of-state offense might be
assigned under Tennessee laws.” Id. at 794.
The determinative factor for whether a foreign conviction constitutes a felony
offense in Tennessee at the time of conviction “is the elements of the convicted offense,
not the facts or the elements of the originally charged offense.” Id. at 795. A foreign
conviction cannot be used to elevate a defendant’s range classification if it could be
committed in several different ways, one of which would have constituted a misdemeanor
rather than a felony under Tennessee law at the time of the foreign conviction. Id. at 794-
95.
In State v. Vick, this court found that the State failed to carry its burden of proving
a foreign conviction because it did not offer proof to show that the defendant’s guilty plea
was based upon the same facts alleged in the charging instrument. Id. at 796. Without
proof of the underlying facts to support the conviction, there is no way to determine if the
elements of the convicted offense are the equivalent of a felony in Tennessee. The State
in Vick introduced:
A certified copy of the defendant’s South Carolina indictment for
assault and battery with intent to kill, as well as a certified copy of
the original arrest warrant and affidavit. . . which alleged that on
September 13, 1973, the defendant committed the offense of assault
and battery with the intent to kill by shooting a man four times with
a short-barreled, .22 caliber rifle. Attached to the indictment was a
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judgment sheet showing that the defendant plead guilty on October
8, 1973, to the offense of assault and battery of a high and aggravated
nature and received a sentence of eight years.
Id. Based upon this evidence, the trial court sentenced the defendant as a Range II offender,
finding beyond a reasonable doubt that the defendant’s South Carolina conviction would
constitute a Class C felony in Tennessee. Id. On appeal, the Vick court held that the State
had failed to meet its burden by neglecting to show proof of the facts underlying the actual
conviction. Id. This court reasoned that introducing evidence of the mere existence of a
prior foreign conviction is insufficient to satisfy the State’s burden of proof under
Tennessee Code Annotated section 40-35-106(b)(5). Id. at 794. The trial court must
analyze the elements of the out-of-state offense in order to determine whether the offense
was analogous to a felony offense under Tennessee’s law as it existed at the time the
offense was committed. Id. (citing State v. Brooks, 968 S.W.2d 312, 314 (Tenn. Crim.
App. 1997)). The length of sentence a defendant receives for an out-of-state conviction is
not determinative of what grade of felony the out-of-state offense might be assigned under
Tennessee laws. Id. (citing State v. Hill, 175 S.E.2d 227 (S.C. 1970)). The name of a
foreign offense is also not determinative where the offense may be committed in a number
of ways, some of which would constitute less than a felony if committed in Tennessee. Id.(citing Pope v. State, 528 S.W.2d 54, 56 (Tenn. Crim. App. 1975)). The trial court must
determine the specific elements of the crime for which the defendant was convicted in the
foreign jurisdiction, and from that correctly determine that the classification is a felony in
Tennessee. Id.Here, the trial court erred in finding that the Georgia conviction was the equivalent
of a Tennessee felony for purposes of increasing Defendant’s range. The record does not
support the finding that the offense to which Defendant pled guilty in Georgia was
committed in a manner that would have constituted a felony in Tennessee. In fact, the
Georgia conviction of “criminal damage to property in the second degree” could have been
committed in a manner that would not have resulted in a felony conviction in Tennessee.
There was no proof in the record of the specific elements of the conviction offense.
Because the trial court relied on the term of the sentence and the amount of restitution and
did not properly conduct the analysis outlined in Vick, the court erred in sentencing
Defendant as a Range III offender. Thus, we remand for Defendant to be sentenced as a
Range II offender.
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Conclusion
Based on the foregoing reasons, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
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JILL BARTEE AYERS, JUDGE
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