State of Tennessee v. Nemon Omar Winton

04/23/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 16, 2019
STATE OF TENNESSEE v. NEMON OMAR WINTON
Appeal from the Circuit Court for Coffee County
No. 41944 L. Craig Johnson, Judge
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No. M2018-01447-CCA-R3-CD
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Defendant, Nemon Omar Winton, was convicted of two counts of especially aggravated
kidnapping, one count of aggravated kidnapping, and one count of aggravated robbery.
The trial court imposed a sentence of thirty years for each count of especially aggravated
kidnapping, fifteen years for aggravated kidnapping, and fifteen years for aggravated
robbery. The trial court ordered the sentences for especially aggravated kidnapping and
aggravated kidnapping to be served concurrently with each other and consecutively to the
sentence for aggravated robbery for an effective forty-five-year sentence to be served in
confinement. On appeal, Defendant argues: (1) that the evidence was insufficient to
support his convictions for especially aggravated kidnapping, aggravated robbery, and
aggravated kidnapping; (2) that the trial court erred in denying his request for a special
jury instruction; and (3) that his sentence was excessive. Upon reviewing the record and
the applicable law, we affirm the judgments of conviction for especially aggravated
kidnapping and aggravated robbery. We conclude the evidence is legally insufficient to
support the conviction of aggravated kidnapping, reverse that conviction and dismiss with
prejudice the charge of aggravated kidnapping contained in Count Nine of the indictment.
That count is remanded for consideration of appropriate lesser-included offenses, if any,
of aggravated kidnapping.
Tenn. R. App. P. 3 Appeal as of Right; Affirmed in Part; Reversed and Remanded
THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.
M. Wesley Hall, IV, Unionville, Tennessee, for the appellant, Nemon Omar Winton.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; Charles Craig Northcott, District Attorney General; and Joshua Powell
and Jason Ponder, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
Background
At approximately 5:00 a.m. on March 8, 2015, Stephanie Trussell arrived at work
at Burger King and began preparing food for the restaurant’s opening at 6:00 a.m. At
some point, Ms. Trussell received a phone call from Defendant asking her for money.
She was friends with Defendant and his wife, Amanda Winton, who was an assistant
manager at the restaurant. Ms. Trussell told Defendant that she did not have any money,
and he hung up. She thought that the call was unusual because Defendant never called
her. Ms. Trussell testified that she and other employees continued getting the restaurant
ready to open. She said:
We just unlocked the doors, and Heather [Hill] was in the back. I’m not
sure what she was doing. Me and Tabitha [Tomlin] was up front. We
just got done counting the registers, and we just heard a loud scream, and
we just looked back there, and then we seen him come around the corner,
and he told us to get on the ground, and so we did.
Ms. Trussell testified that the man who told them to get on the ground had a gun, was
wearing Nike shoes, and “he had some kind of brown bag over his head.” She
recognized the man’s voice as that of Defendant. Ms. Trussell believed that Defendant’s
gun was real, and she was “terrified.”
Ms. Trussell testified that Defendant asked Ms. Tomlin, who was the manager on
duty, where she kept the money. Defendant then said, “Take me to it,” and he and Ms.
Tomlin walked to the back of the restaurant toward the office. Ms. Trussell testified that
she was afraid to move until Defendant left the restaurant. She then ran outside and told
Freddie Shrum, another employee who had been cleaning the parking lot, what happened,
and he called 911. Ms. Trussell then ran across the street, and she saw Defendant run
from behind the building toward Wendy’s. He got into a white Honda and drove away.
Ms. Trussell identified that car as belonging to Defendant’s wife, Amanda Winton. Ms.
Trussell then went back inside the restaurant. She testified that she had previously seen
Defendant at his residence with a gun similar to the one used in the robbery, and he told
her that the gun was real.
Heather Hill testified that she arrived at work on March 8, 2015, sometime
between 5:00 and 6:00 a.m. and began preparing food. She heard a knock on the back
door and thought that it was her fellow employee, Freddie Shrum. As soon as Ms. Hill
opened the door, Defendant pointed a gun at her face and said, “Get down on the floor
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and put your hands behind your head.” He also demanded her cell phone, but Ms. Hill
told him that she did not have one. Ms. Hill lay down on her stomach with her hands
behind her head. She heard two clicks, which sounded like a “dry fire” of the weapon.
Ms. Hill testified that she got a good look at the weapon which “looked like one that you
pop the magazine in the bottom.” At that point, she was terrified and thought that
Defendant was going to kill her.
Ms. Hill testified that Defendant walked to the front of the restaurant, and Ms. Hill
remained on the floor and did not move. She said that as Defendant was leaving the
restaurant, he pointed the gun at her again and said, “Don’t move or I will kill you.” He
then walked out the back door. Ms. Hill testified that she remained on the floor until
police arrived because she was afraid that Defendant would return.
Tabitha Tomlin testified that she arrived to work at Burger King between 4:30 and
5:00 a.m. on March 8, 2015, and began preparing the restaurant to open. She was friends
with Amanda Winton and was familiar with Defendant because he was often at the
restaurant. She was aware that Defendant called Ms. Trussell that morning and asked her
for money. Ms. Tomlin testified she was working and talking to Ms. Trussell when she
heard Ms. Hill scream. She said, “[S]o I came out from the area that I was in towards the
front, and the next thing I notice is just the gun pointed at us.” She could not see Ms. Hill
at that point, and she did not know what happened to her. Ms. Tomlin testified that she
was afraid when she saw the gun and put her hands up. She said that Defendant told her
to get on the ground, and she complied. Ms. Tomlin said that once she got on the ground,
Defendant “put the gun to the back of [her] head, and he said, ‘Where the f - - k do you
keep the money?’” She immediately recognized the voice as belonging to Defendant.
Ms. Tomlin testified that she became more afraid when she learned Defendant’s identity
because she was concerned that he would kill her because she recognized him. Ms.
Tomlin told Defendant that the money was in the office in the back of the restaurant.
Defendant got her up from the floor and walked her to the office at gunpoint.
Ms. Tomlin opened the safe, which had been on “day lock,” and Defendant again
told her to lie down on the floor and not move or he would “f - - king shoot [her].” She
said that she lay on the ground with her eyes closed “waiting on the gunshot honestly,”
and she thought that she was going to die. Ms. Tomlin testified that she heard the back
door shut, and she lay there for a little longer to make sure that Defendant was gone
before she got up. She checked on everyone and went outside. She saw a white Honda at
the red light near McDonald’s, which she identified as Amanda Winton’s car. Ms.
Tomlin thought that police arrived “within a matter of a minute or two, just probably two
minutes, if that” after the robbery. The video of the robbery was shown at trial, and Ms.
Tomlin narrated what happened. Ms. Tomlin testified that all of the bank deposit bags
were taken from the safe during the robbery. She said that Defendant called her
sometime after the robbery and after she had gone to work somewhere else, begging her
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not to testify against him because he was “just so messed up on drugs and everything” at
the time of the robbery.
Captain Nilesh Patel of the Manchester Police Department testified that he
received a dispatch at approximately 7:00 a.m. on March 8, 2015, stating that Burger
King had been robbed. Captain Patel and Sergeant Devon Deford got into Sergeant
Deford’s patrol car and drove toward Burger King. Captain Patel received a description
of the robbery suspect and the car that the suspect was driving and that the car was
“possibly headed towards Hillsboro.” Sergeant Deford made a u-turn on the overpass
and drove toward Hillsboro Boulevard, and Captain Patel watched for the vehicle. He
noticed a white car in front of them, and they began following it. Captain Patel testified
that the driver of the vehicle ran a stop sign and was driving erratically and well above
the posted speed limit. The driver of the car, identified as Defendant, eventually stopped
because the vehicle overheated. Captain Patel then took Defendant into custody. Bank
deposit bags were found in the middle of the road on Volunteer Parkway where
Defendant had driven, and there was a bank deposit bag in Defendant’s car underneath
the driver’s seat. The money in all of the bags totaled $7,965.71.
Andrea Wix was working as a corrections deputy at the Coffee County Jail from
July to October, 2015. She spoke with Defendant after his arrest, and he told her that the
gun used during the robbery was not real and that it “would [be] in the grass on the side
of the road kind of across from the bar that is located in the front of the new jail
currently.” Deputy Wix located the gun in the grass by the roadway and notified the
Manchester Police Department.
Officer Daniel Ray of the Manchester Police Department was the first officer on
the scene at Burger King. He testified that the employees were “very, very scared” and
told him what happened. Officer Ray later drove to the scene where Defendant had been
taken into custody. He advised Defendant of his Miranda rights and asked Defendant
where the bank deposit bag in the car came from. Defendant said that his wife was a
manager at Burger King, and she must have left it in the vehicle. Officer Ray testified
that he later went to the scene where the gun was located and retrieved it. He said that
the weapon was an Airsoft pistol. Officer Ray was familiar with Airsoft pistols because
he used them in SWAT training. He said that police officers like to train with Airsoft
“because it has the correct feel of a pistol,” and “it looks just like a pistol and feels like a
real pistol.”
Analysis
Initially, the State asserts that Defendant’s appeal should be dismissed because his
notice of appeal was filed one day late. Defendant’s motion for new trial was denied by
the trial court on July 9, 2018. Rule 4 of the Tennessee Rules of Appellate Procedure
requires that “the notice of appeal . . . shall be filed with the clerk of the appellate court
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within 30 days after the date of entry of the judgment appealed from[.]”
Tenn. R. App. P. 4. The technical record contains a copy of the notice of appeal with a
stamp-file date of August 9, 2018, indicating that the notice was filed one day late.
However, we note that this court’s file contains an envelope showing that the notice of
appeal was sent by Defendant via certified mail on August 8, 2018. Rule 20(a) of the
Tennessee Rules of Appellate Procedure provides that “[f]iling shall not be timely unless
the papers are received by the clerk within the time fixed for filing or mailed to the office
of the clerk by certified return receipt mail or registered return receipt mail within the
time fixed for filing.” Tenn. R. App. P. 20(a). Because Defendant’s notice of appeal was
sent by certified return receipt mail on August 8, 2018, within the “time fixed for filing,”
the notice of appeal was timely filed.
Sufficiency of the Evidence
Defendant contends that the evidence was insufficient to sustain his convictions
for especially aggravated kidnapping, aggravated kidnapping, and aggravated robbery
because the State did not prove that a “deadly weapon was used nor was one used or
fashioned in a way to cause a reasonable person to believe it was a dangerous weapon.”
Defendant was convicted of the especially aggravated kidnappings of Heather Hill and
Tabitha Tomlin. He was convicted for the aggravated robbery of Tabitha Tomlin and the
aggravated kidnapping of Stephanie Trussell.
“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992)). “Appellate courts evaluating the sufficiency of the convicting evidence must
determine ‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e).
When this court evaluates the sufficiency of the evidence on appeal, the State is entitled
to the strongest legitimate view of the evidence and all reasonable inferences that may be
drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011)
(citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of
review for sufficiency of the evidence “‘is the same whether the conviction is based upon
direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the
credibility of the witnesses, determine the weight given to witnesses’ testimony, and
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reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.
2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,
the jury determines the weight to be given to circumstantial evidence, the inferences to be
drawn from this evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence. Dorantes, 331 S.W.3d at 379 (citing State v. Rice,
184 S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence,
this court “neither re-weighs the evidence nor substitutes its inferences for those drawn
by the jury.” Wagner, 382 S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997)).
Especially aggravated kidnapping is “false imprisonment, as defined in [Tennessee
Code Annotated section] 39-13-302[,] [a]ccomplished with a deadly weapon or by
display of any article used or fashioned to lead the victim to reasonably believe it to be
a deadly weapon[.]” T.C.A. § 39-13-305(a)(1). “A person commits the offense of false
imprisonment who knowingly removes or confines another unlawfully so as to interfere
substantially with the other’s liberty.” T.C.A. § 39-13-302(a). Aggravated robbery as
charged here is the “intentional or knowing theft of property from the person of another
by violence or putting the person in fear,” when the robbery is accomplished “with
a deadly weapon or by display of any article used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon.” T.C.A. § 39-13-401(a),-402(a)(1).
A deadly weapon includes “[a]nything that in the manner of its use or intended use is
capable of causing death or serious bodily injury.” T.C.A. § 39-11-106(a)(6)(B).
As to the especially aggravated kidnapping and aggravated robbery convictions,
Defendant does not dispute that he went into Burger King on March 8, 2015, and took the
bank deposit bags containing $7,965.71. His sole argument concerning sufficiency of the
evidence is that a “rational trier of fact could not have found the essential element of
possession of a deadly weapon or threatens the use of a deadly weapon beyond a
reasonable doubt; therefore, ‘the evidence preponderates against the verdict of the jury’
and as such the conviction should be overturned.” The evidence in this case
overwhelmingly shows that Defendant used the Airsoft gun in a way “fashioned to lead
the victim[s] to reasonably believe it to be a deadly weapon.” When Heather Hill opened
the back door to Burger King, Defendant pointed the gun at her face and told her to get
down on the floor. Ms. Hill heard two clicks, which sounded like a “dry fire” of the
weapon. She noted that the gun “looked like one that you pop the magazine in the
bottom.” She was terrified and thought that Defendant was going to kill her. As
Defendant left the restaurant after the robbery, he pointed the gun at her again and said,
“Don’t move or I will kill you.”
Ms. Tomlin testified that Defendant pointed the gun at her and told her to get on
the floor. He then put the gun to the back of her head and said, “Where the f - -k do you
keep the money?” Ms. Tomlin told him where the money was kept, and Defendant
walked her to the office at gunpoint. After Ms. Tomlin opened the safe, and Defendant
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took the bank deposit bags, he again told her to lie down on the floor and not move or he
would “f- -king shoot [her].” Ms. Tomlin testified that she lay on the ground with her
eyes closed “waiting on the gunshot honestly,” and she thought that she was going to die.
Officer Ray testified that the gun used in the robbery was an Airsoft pistol. He noted that
police officers like to train with Airsoft pistols because they have the “correct feel of a
pistol,” and they look “just like a pistol and feel[] just like a real pistol.”
Defendant used the Airsoft pistol in a way which led the victims to reasonably
believe it to be a deadly weapon. As such, a rational person could find beyond a
reasonable doubt that Defendant committed the offenses of aggravated robbery and
especially aggravated kidnapping. Defendant is not entitled to relief on this issue as to
these convictions.
As to the conviction for aggravated kidnapping of Stephanie Trussell, a different
result is required. The jury found Defendant guilty of this offense as a lesser-included
offense of the indicted charge of especially aggravated kidnapping. The count charging
especially aggravated kidnapping of Stephanie Trussell alleges as follows:
The Grand Jurors of Coffee County, Tennessee, duly impaneled and
sworn upon their oaths present that Newmon Omar Winton on or about
the 8th day of March, 2015, in Coffee County, Tennessee, and before the
return of this indictment, did unlawfully and knowingly did remove or
confine Stephanie Trussell, said removal or confinement being
accomplished by force, threat or fraud, and with a deadly weapon, being
a handgun, or by display of any article used or fashioned to lead the
victim to reasonably believe it to be a deadly weapon, in violation of
T.C.A. 39-13-305(a)(1), and against the peace and dignity of the State of
Tennessee.
Thus, as relevant in this appeal, especially aggravated kidnapping required that the
evidence establish the following as to Ms. Trussell:
39-13-305. Especially aggravated kidnapping.
(a) Especially aggravated kidnapping is false imprisonment, as defined
in § 39-13-302:
(1) Accomplished with a deadly weapon or by display of any article
used or fashioned to lead the victim to reasonably believe it to be
a deadly weapon[.]
T.C.A. § 39-13-305(a)(1).
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As pertinent, the elements of aggravated kidnapping which would permit
it to be a lesser-included offense of especially aggravated kidnapping as charged
in the indictment are:
39-13-304. Aggravated kidnapping.
(a) Aggravated kidnapping is false imprisonment, as defined in § 39-13-
302, committed:
* * *
(5) While the defendant is in possession of a deadly weapon or
threatens the use of a deadly weapon.
T.C.A. § 39-13-304(a)(5).
The only common element of especially aggravated kidnapping and of aggravated
kidnapping is the first element of each offense – the false imprisonment of the victim as
defined in T.C.A. § 39-13-302. As shown above, Defendant’s charged offense of
especially aggravated kidnapping was that he committed false imprisonment of Ms.
Trussell, which was accomplished with a deadly weapon or by display of any article used
or fashioned to lead the victim to reasonably believe it to be a deadly weapon.
There are five different methods to commit aggravated kidnapping, the offense for
which Defendant was convicted. In addition to the fifth method quoted above, the statute
proscribes false imprisonment committed “(1) To facilitate the commission of any felony
or flight thereafter; (2) To interfere with the performance of any governmental or political
function; (3) With the intent to inflict serious bodily injury or to terrorize the victim or
another; (4) Where the victim suffers bodily injury.” T.C.A. § 39-13-304(a)(1)-(4).
In order to be a lesser-included offense, all the elements of the lesser offense must
be included in the greater offense or if it differs from the greater offense only in that it
contains a statutory element establishing a different mental state indicating a lesser kind
of culpability or a less serious risk of harm. See State v. Howard, 504 S.W.3d 260, 270
(Tenn. 2016); State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). T.C.A. § 39-13-
304(a)(5) is the only aggravated kidnapping definition that fits the definition of a lesser-
included offense of especially aggravated kidnapping as it was charged in the count of the
indictment relating to Ms. Trussell.
The State concedes in its argument on the sufficiency of the evidence that the non-
lethal Airsoft pistol used by Defendant is not a firearm or any other type of deadly
weapon, citing T.C.A. § 39-11-106(a)(5). See also State v. McGouey, 229 S.W.3d 668,
673-74 (Tenn. 2007)(In an aggravated assault case, “deadly weapon” did not include an
unloaded pellet gun).
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An essential element of the offense of aggravated kidnapping as to Defendant’s
conviction is that he was in possession of a deadly weapon or threatened the use of a
deadly weapon. Even though the proof was overwhelming that Defendant committed the
greater charged offense as to Ms. Trussell, we can only examine the elements of the
conviction offense when determining the sufficiency of the evidence to sustain the
conviction. State v. Parker, 350 S.W.3d 883, 909 (Tenn. 2011).
Accordingly, the evidence is insufficient to sustain the conviction for aggravated
kidnapping, and that judgment must be reversed and dismissed, with that count remanded
for consideration of any appropriate lesser-included offenses.
Jury Instruction
Defendant argues that the trial court erred by denying his request for a special jury
instruction stating “that a bb gun is not a dangerous weapon per se.” We disagree.
In order to prevail on a claim of improper jury instructions, Defendant must prove
that (1) the jury instructions given were an improper and incomplete charge of the law
and (2) these instructions resulted in prejudice against Defendant during trial. A
defendant has a constitutional right to a full and complete charge of the law. State v.
Walker, 29 S.W.3d 885, 893 (Tenn. Crim. App. 1999) (citing State v. Teel, 793 S.W.2d
236, 249 (Tenn. 1990)). Trial courts have an obligation to give a full instruction
concerning the charge of the offense. Id. Further, the trial court is not required to give a
special instruction if the general jury charge is correct and complete. State v. Zirkle, 910
S.W.2d 874, 892 (Tenn. Crim. App. 1995). A jury instruction is prejudicially erroneous
“only if the jury charge, when read as a whole, fails to fairly submit the legal issues or
misleads the jury as to the applicable law.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn.
2005) (citing State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998)). Challenges to a trial
court’s jury instructions are mixed questions of fact and law, and therefore are reviewed
de novo. State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001). Rule 30 of the Tennessee
Rules of Criminal Procedure provides for requests for a special jury instruction to be
in writing. State v. Vickers, 985 S.W.2d 1, 8 (Tenn. Crim. App. 1997); State v. Brewer,
932 S.W.2d 1, 15 (Tenn. Crim. App. 1996).
The State argues that the record in this case fails to demonstrate that Defendant
made a written request for the jury instruction defining a “per se” deadly weapon as
permitted by Rule 30 of the Tennessee Rules of Criminal Procedure. At trial, the
following exchange took place:
THE COURT: All right. Also, [trial counsel], you had requested by
way of an email a special instruction from an
unreported case, I’m assuming, State vs. Dixon, in
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regards to a BB gun or carbon dioxide powered pellet
gun is not a deadly weapon per se. It appears from
the holding of that unreported case that it requires
evidence to prove whether or not a BB gun could be
considered a deadly weapon, but there is also other
elements of the indicted crime and the lesser included
offenses that talk about whether or not it is fashioned
or displayed to convince or for the victim to perceive
it to be a deadly weapon, so I am not going to charge
that. I mean, you can obviously argue that, but I am
not going to charge it because then - - you know,
most folks don’t necessarily know what “per se”
mean, so then we could get into the definition of “per
se.” I think that’s a question of fact for the jury to
decide whether or not the elements of the indicted
charge or lesser included offenses were met.
[Trial counsel]: (Nodded head up and down).
Although the trial court mentioned an email from trial counsel concerning the
special jury instruction, neither the email nor any other written request for jury
instructions appears in the record on appeal. As this court has repeatedly stated, it is
the appellant’s duty to prepare a record which conveys a fair, accurate, and complete
account of what transpired in the trial court which forms the basis of his appeal.
See Tenn. R. App. P. 24(b). “In the absence of an adequate record on appeal, this court
must presume that the trial court’s rulings were supported by sufficient evidence.” State
v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Because the record does not
show that Defendant made a request for the special jury instruction in writing, this issue
is waived. See Tenn. R. Crim. P. 30(a); State v. Leath, 461 S.W.3d 73, 107 (Tenn. Crim.
App. 2013)(citing State v. Mackey, 638 S.W.2d 830, 836 (Tenn. Crim. App. 1982)(stating
that Rule 30 “envisions that such requests be made in writing” and that oral requests for
instructions are not sufficient for an appellant court to find error by the trial court for
rejecting a requested jury instruction)); Vickers, 985 S.W.2d at 8; Brewer, 932 S.W.2d at
15. We also decline to review the issue for plain error.
Sentencing
Defendant contends that his sentence is excessive. He does not challenge the trial
court’s findings concerning enhancement and mitigating factors or the court’s reason for
imposing partial consecutive sentences. Instead, Defendant cites to the purposes and
principles of the Sentencing Reform Act of 1989 codified in T.C.A. §§ 40-35-102 and
40-35-103. He contends that the “punishment imposed does not fit the crime or the
offender.” Defendant further argues that “it is clear that such a sentence is excessive and
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fails to take into account the trial court’s duty to consider the economic impact of the
sentence as a fiduciary of the State,” and “[g]iven the great need to preserve the State’s
limited resources the minimum sentence available under the law is sufficient to ensure
the interests of the Sentencing Reform Act are met.”
Our standard of review of the trial court’s sentencing determinations is whether
the trial court abused its discretion, and we apply a “presumption of reasonableness to
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). The
party challenging the sentence on appeal bears the burden of establishing that the
sentence was improper. T.C.A. § 40-35-401 (2017), Sentencing Comm’n Cmts. In
determining the proper sentence, the trial court must consider: (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 the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (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 made in the defendant’s own behalf
about sentencing; and (8) the result of the validated risk and needs assessment conducted
by the department and contained in the presentence report. See T.C.A. § 40-35-210; State
v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court must also
consider the potential or lack of potential for rehabilitation or treatment of the defendant
in determining the sentence alternative or length of a term to be imposed. T.C.A. § 40-
35-103 (2017).
Trial courts are “required under the 2005 amendments to ‘place on the record,
either orally or in writing, 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.’” Bise, 380 S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)).
Under the holding in Bise, “[a] sentence should be upheld 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.
With respect to consecutive sentencing, our supreme court has held that the
standard of review adopted in Bise “applies similarly” to the imposition of consecutive
sentences, “giving deference to the trial court’s exercise of its discretionary authority to
impose consecutive sentences if it has provided reasons on the record establishing at least
one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b)[.]”
State v. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013). Tennessee Code Annotated section
40-35-115(b) provides that a trial court may order sentences to run consecutively if it
finds any one of the following criteria by a preponderance of the evidence:
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(1) The defendant is a professional criminal who has knowingly devoted
the defendant’s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
(3) The defendant is a dangerous mentally abnormal person so declared
by a competent psychiatrist who concludes as a result of an investigation
prior to sentencing that the defendant’s criminal conduct has been
characterized by a pattern of repetitive or compulsive behavior with
heedless indifference to consequences;
(4) The defendant is a dangerous offender whose behavior indicates little
or no regard for human life, and no hesitation about committing a crime
in which the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the defendant and
victim or victims, the time span of defendant’s undetected sexual
activity, the nature and scope of the sexual acts and the extent of the
residual, physical and mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while on
probation; or
(7) The defendant is sentenced for criminal contempt.
T.C.A. § 40-35-115(b). In Pollard, the court reiterated that “[a]ny one of these grounds
is a sufficient basis for the imposition of consecutive sentences.” 432 S.W.3d at 862.
“So long as a trial court properly articulates its reasons for ordering consecutive
sentences, thereby providing a basis for meaningful appellate review, the sentences will
be presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Id.; Bise,
380 S.W.3d at 705.
Here, the record reflects that the trial court in sentencing Defendant applied two
enhancement factors: Defendant has a previous history of criminal convictions or
criminal behavior, in addition to those necessary to establish the appropriate range; and
Defendant, before trial or sentencing, failed to comply with the conditions of a sentence
involving release into the community. T.C.A. § 40-35-114(1) and (8). Defendant does
not challenge the enhancement factors, and the record reflects that they were
appropriately considered. The trial court also found no mitigating factors. T.C.A. § 40-
35-113.
Defendant faced a sentencing range of twenty-five to forty years as a Range II,
multiple offender for each conviction of especially aggravated kidnapping, a Class A
felony, and twelve to twenty years for the convictions of aggravated robbery and
aggravated kidnapping, both Class B felonies. T.C.A. §§ 40-35-106 and 40-35-
112(b)(1)(2). The trial court imposed a sentence of thirty years for each count of
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especially aggravated kidnapping and fifteen years each for aggravated kidnapping and
aggravated robbery. The trial court ordered the sentences for especially aggravated
kidnapping and aggravated kidnapping to be served concurrently with each other but
consecutively to the sentence for aggravated robbery for an effective forty-five year
sentence to be served in confinement.
Having reviewed the record before us, we conclude that the trial court clearly
stated on the record its reasons for the sentences imposed, and all of Defendant’s
sentences are within the appropriate ranges. The record reflects that the trial court
considered the purposes and principles of the Sentencing Act. Therefore, the trial court’s
imposition of the less than the maximum sentences for each of Defendant’s convictions is
presumed reasonable.
As for partial consecutive sentencing, the trial court in this case found that
Defendant is a professional criminal who has knowingly devoted his life to criminal acts
as a major source of livelihood and that Defendant is an offender whose record of
criminal activity is extensive. The trial court noted that Defendant has “six (6) prior
felony convictions and other misdemeanor convictions.” See T.C.A. § 40-35-115(b)(1)-
(2). Defendant does not challenge the two factors applied by the trial court to support
partial consecutive sentencing, and the record reflects that they were appropriately
applied.
We conclude the trial court did not err when it imposed an effective forty-five-
year sentence. We note that Defendant’s argument that the cost of his lengthy sentence is
financially burdensome is not persuasive. See State v. Paul Brent Baxter, No. M2015-
00939-CCA-R3-CD, 2016 WL 2928266, at *6 (Tenn. Crim. App. May 16, 2016)(“As for
the Defendant’s argument about the cost of his incarceration, it neither overcomes the
presumption of reasonableness nor demonstrates an abuse of the trial court’s
discretion.”). Defendant is not entitled to relief.
CONCLUSION
Based upon the foregoing analysis, we affirm the judgments of conviction for
especially aggravated kidnapping and aggravated robbery. We conclude the evidence is
legally insufficient to support the conviction of aggravated kidnapping, reverse that
conviction and dismiss with prejudice the charge of aggravated kidnapping contained in
Count Nine of the indictment. That count is remanded for consideration of appropriate
lesser-included offenses, if any, of aggravated kidnapping.
____________________________________________
THOMAS T. WOODALL, JUDGE
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