State of Tennessee v. Demonica Gore

11/18/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 19, 2020
STATE OF TENNESSEE v. DEMONICA GORE
Criminal Court for Shelby County
No. 16-00317
No. W2019-01320-CCA-R3-CD
The Defendant-Appellant, Demonica Gore, was convicted by a Shelby County jury
of aggravated robbery and received a sentence of twelve years’ imprisonment. In this
appeal as of right, the Defendant presents the following issues for our review: (1) whether
the trial court erred in sustaining the State’s objection to defense counsel’s question during
voir dire concerning the juror’s views on police confessions; (2) whether the evidence was
sufficient to sustain the conviction; and (3) whether the trial court erred in imposing the
maximum sentence of twelve-years’ imprisonment.1 Upon our review, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and J. ROSS DYER, JJ., joined.
Eric Mogy, Memphis, Tennessee, for the Defendant-Appellant, Demonica A. Gore.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Amy Weirich, District Attorney General; and Jamie Kidd, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
The victim in this case, Rickey Scruggs, was lured to the scene of the offense by his
friend, Alexis Bell, who called him on the day of the offense under the guise of purchasing
some marijuana. When the victim met Bell in the breezeway of his apartment complex, he
was accosted by two other individuals. One individual pointed a gun to the back of the
victim’s head while the other individual took the victim’s belongings. The perpetrators
1
We have re-ordered the Defendant’s issues for clarity.
1
ordered the victim to undress, grabbed Bell’s purse, and ran away. Based on subsequent
investigation, law enforcement determined that Bell set up the robbery, the Defendant and
co-defendant Jeremy Featherstone were armed with guns during the robbery, and another
individual, Aqua Herman, helped to dispose of the guns after the offense. The Defendant
gave a statement to police and confessed to the robbery of the victim at gunpoint. All four
individuals were later indicted for their involvement in the offense,2 and the following
proof was adduced at the Defendant’s trial.
At the time of the offense, Alexis Bell had been in a romantic relationship with the
Defendant for two-and-a half years. She testified that on January 24, 2014, she was in east
Memphis with the Defendant and Jeremy Featherstone. She was later dropped off at the
apartment complex where the robbery occurred. When she was dropped off, the Defendant
and co-defendant Featherstone went to the store. Bell called the victim, a friend she had
known from high school, and asked to purchase marijuana, and he agreed. When Bell went
to purchase the marijuana, she realized she did not have her purse or any money. The
victim told her to go get it, and he would meet her half-way from the apartment. When she
walked out the door, the Defendant and co-defendant Featherstone met them at the door.
Bell observed the Defendant put a gun to the victim’s head and heard the Defendant order
him to undress. She observed co-defendant Featherstone “just grabbing everything that
[the Defendant] told him to take off” of the victim. Bell was shoved back inside the
apartment, and the victim called the police.
Twenty to thirty minutes later, the Defendant picked up Bell from the apartments
in a different car than the one she had been in earlier that day. They drove to a location off
Kirby and Quince Road, where Bell observed the Defendant empty the victim’s clothes
into a garbage can. Two or three hours later, Bell received a telephone call from the police
to come to the station, and she complied. Once at the station, Bell provided a statement
concerning the robbery and reported that the perpetrator was someone named Paul. She
explained she had been coerced to identify someone other than the Defendant. However,
she later told the truth and identified the Defendant and co-defendant Featherstone as the
perpetrators of the robbery. She was unaware of the Defendant’s and the co-defendant
Featherstone’s plan to rob the victim prior to the robbery.
2
The Defendant and Jeremy Featherstone were indicted jointly for the aggravated robbery of the
victim in violation of Tennessee Code Annotated section 39-13-402 (count one); Alexis Bell was indicted
for facilitation of aggravated robbery of the victim by the Defendant and Jeremy Featherstone in violation
of Tennessee Code Annotated section 39-13-403 (count two); Aqua Herman was also indicted for
tampering with evidence, false reporting, accessory after the fact in violation of Tennessee Code Annotated
sections 39-16-503, 39-16-502, and 39-11-411 (counts three, four, and five). The Defendant was tried
alone.
2
On cross-examination, she agreed that she originally told police that “Scooby and
Paul” were the perpetrators of the robbery and that Scooby was Featherstone’s nickname.
She reiterated that she was coerced by the Defendant to provide these names to the police.
She estimated that she was “halfway” out of the door when the Defendant pushed her back
inside the apartment. The Defendant was wearing a hoodie over her face; however, Bell
observed parts of her face and the tattoos on the Defendant’s hands. She agreed she had
received a favorable settlement of her case from the State in exchange for truthful testimony
against the Defendant. She admitted she initially denied any involvement in the instant
offense.
Rickey Scruggs, the victim, was living in Autumnwood Apartments at the time of
the offense and considered Alexis Bell, whom he had known from high school, to be a
friend. Around noon on the day of the offense, he spoke with Bell and agreed to sell her
some marijuana. He intended to meet Bell a few feet from his apartment door or from
“breezeway to breezeway.” He met Bell, who was initially alone, and they walked back
toward his apartment. As Bell opened the door to step into the apartment, the victim was
“bumped” and held at gunpoint. The victim said there were two perpetrators involved in
the offense. One perpetrator pointed a gun at his chest and face. The victim described the
gun as a “black like Tic 9” with a round barrel similar to an “Uzi simulation.” He identified
a gun during his testimony, which was recovered from the home of Aqua Herman and later
admitted as an exhibit, as the same gun used to rob him. One perpetrator told him to “take
everything out of his pocket and drop it off.” Fearing for his life, the victim complied. The
perpetrators wore masks and forced the victim to look down. However, the victim saw one
of the perpetrators and felt the presence of the other, who held a gun to the back of his
head. The perpetrators forced the victim to undress, and the victim took off his jacket and
sweatpants. The victim said he was wearing a “Jordan jacket,” which he described as
“unique” based on the inside grey color “dragged with the little lines like the shows have
on them.” The victim identified his jacket at trial, admitted as an exhibit, as the one that
was taken from him during the offense.
The victim said he also had an iPhone and “a bag of weed” inside his pants pocket.
He did not give the perpetrators permission to take any of these items from him. The
perpetrators grabbed Bell’s purse and ran away. Shortly thereafter, the victim ran to his
apartment, put on some clothes, and went to the police station to report the robbery. He
was unable to identify the perpetrators because they wore masks; however, he described
the perpetrator who held the gun to his head as follows:
Probably slim build, probably a hundred, hundred and forty, hundred and
fifty pounds. Five eleven or six feet. Tall. Their dreadlocks still going from
under the mask.
3
On cross-examination, the victim agreed that he identified someone other than the
Defendant as the perpetrator of the offense in a police photographic line-up, which was
admitted as an exhibit. The victim denied being “high” at the time of the photographic
line-up procedure. The victim agreed that he initially advised the police that the
perpetrators were two Black males and that the perpetrators fled the scene in a blue
Mustang. The victim had known the Defendant from high school or for eight or nine years
and considered her to be a friend. The victim further acknowledged that his jacket did not
contain his initials and that he previously had been in a romantic relationship with Bell
when they were in high school. The victim also agreed he had a prior aggravated burglary
conviction and received a sentence of probation. The victim estimated the robbery lasted
between four and five minutes.
Cassandra Franklin, who also lived in the Autumnwood Apartments, testified that
on the day of the offense she called the Defendant to purchase marijuana. The Defendant
asked Franklin if Bell could stay at her apartment while the Defendant visited another
friend, and Franklin agreed. Franklin said that Bell kept going in and out of the apartment
while she was waiting for the Defendant. Franklin heard scuffling outside of her apartment;
however, she did not observe the robbery. Bell later asked Franklin to take her to a store
to meet the Defendant, and Franklin agreed. Once at the store, Bell got out of Franklin’s
car and met the Defendant, who was with another male individual unknown to Franklin.
On cross-examination, Franklin clarified that she took Bell to the store approximately
fifteen minutes after the robbery. She said that Bell had her purse and that the Defendant
was in a black, four door sedan, when she dropped Bell off at the store.
Aqua Herman was in a dating relationship with the Defendant at the time of the
offense. She testified that on the day of the offense, the Defendant had possession of her
truck, a 2005 red, Ford Explorer. The Defendant picked up the truck from Herman’s
workplace earlier in the day and had returned it later that night. Two days after the offense,
the Defendant told Herman that the Defendant and Bell had robbed the victim. The
Defendant told Herman that “guns [were] in [her] truck[.]” That same night, Herman
discovered “guns . . . in a City Gear bag” in her truck. Herman retrieved the bag, which
she confirmed contained two guns, and put it on a top shelf in her home. Herman denied
putting the guns in her truck and agreed the only other person who had the ability to do so
was the Defendant. Herman denied any prior knowledge of the robbery or an attempt to
cover up the crime. She said she secured the guns in her home for the safety of her four-
year old daughter. When Herman was contacted by the police, she advised them about the
guns and that the Defendant had put them in her truck.
On-cross examination, Herman agreed she was charged with being an accessory
after the fact and theft of property for her involvement in the instant case. She had not yet
entered a guilty plea and had not been provided with a specific offer from the State for her
testimony against the Defendant. Herman explained that she was in a casual dating
4
relationship with the Defendant, and Herman was aware the Defendant was also dating
Bell at the time of the offense.
Tristan Brown, a crime scene officer with the Memphis Police Department (MPD),
testified that on January 27, 2014, she photographed and collected evidence from Herman’s
residence. Specifically, Officer Brown recovered a City Gear bag with clothing inside of
it and two guns, all of which was admitted as evidence at trial. One of the guns, a “TEC-
9,” had been previously identified by the victim as the same weapon used to perpetrate the
offense.
Marlon Carter was an MPD investigator assigned to the Ridgeway Station at the
time of the offense. On May 25, 2014, Investigator Carter advised the Defendant of her
rights under Miranda, which she waived and provided a statement. The advice of rights
form and the statement were admitted as exhibits at trial. Within the statement, the
Defendant admitted that she and “Scooby” robbed the victim of marijuana. She
specifically stated:
I took my girl Alexis to [apartment address] to do somebody’s hair. I
got out of my car to holler at my boy Scooby. Scooby asked me if I had some
weed and I told him no. He stated that we – he state[d] that he knew a guy
named Rickey who kept weed on him and suggested that we could rob him
and take his weed.
Me and Scooby stood there in the parking lot and before Scooby could
call Rickey we saw Rickey walking across the parking lot and Rickey served
Scooby with some weed. After that Scooby walked up behind Rickey and
pulled Rickey’s hoodie over his head and pulled his gun on Rickey and stated
where it’s at man. Rickey said man, don’t do that and Scooby said stop
messing around, I got one in the chamber. At the same time Alexis was
coming out of the apartment so that she could not – would not get hurt.
Scooby made Rickey take off all his clothes and then Scooby went
through Rickey’s pants pockets and pulled out two seven grams. Scooby
gave me . . . one and he kept one, the other, and . . . we went our separate
ways.
The Defendant said she drove to the apartment location in a 2008, black Forenza
Suzuki. She denied that Alexis Bell was involved in the robbery.
Detective Denetta Craig of the MPD was the lead investigator in this case. On the
day of the offense she too was assigned to Ridgeway Station, a general investigation or
“catchall” bureau. Detective Craig said Alexis Bell helped to set up the robbery, the
Defendant and Jeremy Featherstone acted as armed gunman during the robbery, and Aqua
5
Herman concealed the guns used in the robbery after the fact. Detective Craig also went
to the home of the Defendant’s mother, who signed a consent form permitting a search of
the residence. During the search, an empty TEC-9 gun box, admitted as an exhibit at trial,
was recovered, photographed, and seized. The box contained a portion of a serial number,
which read as 11776. Detective Craig also accessed the Facebook page of the Defendant,
and on January 27, 2014, she printed a photograph of the Defendant holding a TEC-9 gun.
The photograph was admitted into evidence as an exhibit. On cross-examination, Detective
Craig was shown two photographic line-up arrays. She agreed that a photograph of the
Defendant was included in each array; however, the Defendant was not identified as the
perpetrator. Both photographic arrays were admitted into evidence at trial.
The State rested its case, and the Defendant did not offer any proof at trial. The jury
convicted the Defendant as charged of aggravated robbery. Following a sentencing hearing
on May 9, 2019, the trial court imposed a twelve-year sentence of imprisonment. The
Defendant filed a motion for new trial, which was subsequently denied by the trial court.
This timely appeal followed.
ANALYSIS
I. Voir Dire. The Defendant argues the trial court erred in sustaining the State’s
objection during voir dire to defense counsel’s question to the jury venire concerning their
beliefs about confessions. In failing to allow this line of questioning, the Defendant claims
she was denied the opportunity to investigate prospective juror’s beliefs concerning
statements made to the police and that “it potentially affected the [her] ability . . . to ensure
she had a jury she felt comfortable with.” Relying primarily upon State v. Kimberly C.
Hodge, No. M2007-00940-CCAR3CD, 2009 WL 774461, at *20 (Tenn. Crim. App. Mar.
25, 2009), the State argues the trial court properly limited the Defendant’s questions about
the voluntariness of her confession during voir dire. Upon our review, we conclude that
the trial court erred in prohibiting defense counsel from exploring the views of the jury
regarding confessions or statements to police.
The record shows that following a lengthy description of the difference between the
burden of proof in a civil and criminal case, defense counsel asked the prospective jury,
“Now, for those of you [] lucky enough to stick around you will probably hear that there is
a confession involved in this case. And how many, before I ask any further questions,
absolutely believe they would never confess or state that they did something when in reality
that they didn’t do it?” A prospective juror asked defense counsel to repeat the question.
Defense counsel rephrased and asked, “How many people in here think they would never
admit to doing something that they actually did not do?” On this question, the State
objected and asked to approach the bench.
At the bench conference, the State advised the trial court that it had not yet decided
whether to introduce the confession and counsel’s comments were therefore inappropriate.
6
The State further explained that defense counsel’s comments were premature because its
decision to introduce the Defendant’s statement was contingent on the testimony of two
other cooperating witnesses. In response, defense counsel explained that he had only
provided a “figurative,” which we interpret to mean hypothetical. The trial court sustained
the objection and urged defense counsel to “stay away from that” or rephrase the question
without getting into the proof. The record does not reflect any additional questioning
concerning confessions or statements to police.
Among the most essential responsibilities of defense counsel is to protect his
client’s constitutional right to a fair and impartial jury by using voir dire to identify and
ferret out jurors who are biased against the defense. Morgan v. Illinois, 504 U.S. 719, 726-
27, 112 S. Ct. 2222 (1992). The right to a trial by an impartial jury is guaranteed by the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I,
section 9 of the Tennessee Constitution. State v. Davidson, 509 S.W.3d 156, 193 (Tenn.
2016); State v. Carruthers, 35 S.W.3d 516, 559 (Tenn. 2000). “A voir dire examination is
for the purpose of advising counsel of the juror’s qualification, interest, or bias . . . [and]
[t]he subjacent purpose is to enable the exercise of one’s peremptory challenges.” Smith
v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959). The voir dire process also ensures that
jurors “are competent, unbiased, and impartial, and the decision of how to conduct voir
dire of prospective jurors rests within the sound discretion of the trial court.” State v.
Cazes, 875 S.W.2d 253, 262 (Tenn. 1994); State v. Howell, 868 S.W.2d 238, 247 (Tenn.
1993) (citing State v. Harris, 839 S.W.2d 54, 65 (Tenn.1992); State v. Simon, 635 S.W.2d
498, 508 (Tenn.1 982); Mu’Min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899 (1991)). “The
control of voir dire proceedings rests within the sound discretion of the trial court, and this
court will not interfere with the exercise of this discretion unless clear abuse appears on
the face of the record.” State v. Reid, 213 S.W.3d 792, 835 (Tenn. 2006) (citing State v.
Howell, 868 S.W.2d 238, 247 (Tenn.1993), cert. denied, 510 U.S. 1215, 114 S. Ct.
1339(1994)); see also Tenn. R. Crim. P. 24(a), (b) (“[The court] shall permit the parties to
ask questions for the purpose of discovering bases for challenge for cause and intelligently
exercising peremptory challenges.”).
In State v. Kimberly C. Hodge, No. M2007-00940-CCA-R3-CD, 2009 WL 774461,
at *20 (Tenn. Crim. App. Mar. 25, 2009), the Defendant argued that she was denied a fair
and impartial jury based on the refusal of the trial court “to allow [defense] counsel to
question prospective jurors concerning their willingness to consider factors related to the
voluntariness of her statement[.]” Based on the record, it was unclear whether defense
counsel actually posed a question regarding the voluntariness of the statement or merely
intimated that the jury could ignore the law when the State lodged its objection. Id. The
State objected, arguing that defense counsel was precluded from asking a question
concerning the voluntariness of the statement because it was a “hotly contested” issue and
the trial court had already determined its admissibility. Defense counsel insisted the jury
could still consider the facts as to the “voluntariness of the statement” and requested
7
permission to ask the jury to consider certain specific factors pertaining to the voluntariness
of the statement.
In denying relief, this court relied upon well settled law. After the trial court
determines the admissibility of the confession, the jury determines the weight to be given
the confession and whether the statements contained therein are true. State v. Kimberly C.
Hodge, 2009 WL 774461, at *21 (internal citations omitted). We additionally noted that
in United States v. Price, 888 F.2d 1206 (6th Cir. 1989), the Sixth Circuit flatly rejected a
similar issue and noted
Neither due process, nor the right to an impartial jury, nor sound reasoning
and logic require that trial judges specifically present the venire with the most
incriminating, disputed pieces of the government’s case simply because they
are so incriminating.
Id. (emphasis in original). The Sixth Circuit in Price reasoned that requiring the trial court
to do so would (1) “result in the disqualification of most (honest) prospective jurors;” (2)
“require prospective jurors to determine, before being properly presented with the evidence
and observing the witnesses’ demeanor, whether or not an important disputed event took
place or statement was made;” (3) “allow both sides to introduce, comment upon and
possibly mischaracterize the evidence which is to be introduced in the course of the trial;”
and (4) “be an intrusion on the trial judge’s traditional broad discretion in conducting voir
dire.” Id. at 1211.
Hodge does not stand for the broad proposition that a defendant may not explore the
views of the jury on confessions or statements to police as suggested by the State. Rather,
Hodge rejected presenting to the jury the narrow question of the voluntariness of a
confession, a legal determination to be made by the trial court. There was no motion to
suppress involved in this case and the questioning in voir dire did not involve the
voluntariness of the Defendant’s confession or an attempt to nullify the jury. Accordingly,
we find Hodge inapplicable here.
When defense counsel asked, “How many people in here think they would never
admit to doing something that they actually did not do[,]” the State objected presumably
based on the question being tethered to defense counsel’s mentioning the confession earlier
in his comments. The Defendant argues he is entitled to relief because the State objected
because it was unsure of whether it would use her confession, the trial court sustained the
objection on this ground, and the State subsequently introduced the confession. We agree
with the Defendant that the State’s objection was specious and that there was nothing
improper about this question. It broached the concept of false confessions, a legitimate
phenomenon and commonly used theory of defense to confessions or statements given to
police. See e.g., Corley v. United States, 556 U.S. 303, 320-21, 129 S. Ct. 1558, 1570, 173
L. Ed. 2d 443 (2009) (citing Steven A. Drizin & Richard A. Leo, The Problem of False
8
Confessions in the Post-DNA World, 82 N.C.L.Rev. 891, 906-907 (2004)) (noting “there
is mounting empirical evidence that [custodial police interrogation] can induce a
frighteningly high percentage of people to confess to crimes they never committed”). In
our view, this question was fairly designed to uncover any predisposition or bias against
the notion that an individual would confess to a crime for any other reason than guilt.
Indeed, as borne out by the defense theory in closing argument, the Defendant argued she
falsely confessed to the aggravated robbery to protect her girlfriend, who was eventually
charged as an accomplice to the crime.
While we conclude that the trial court unreasonably restricted defense counsel’s
questioning of prospective jurors, any error in doing so here was harmless beyond a
reasonable doubt. The Defendant makes no attempt to argue or establish prejudice.
Additionally, the trial court permitted defense counsel to rephrase the question without
explicit reference to the instant confession; however, defense counsel abandoned any
further questioning on this issue. We also have no evidence that the Defendant exercised
or exhausted her peremptory challenges, and the record otherwise shows that the jury as
sworn was fair and impartial. Finally, the proof at trial absent the Defendant’s confession
to police established the elements of the offense beyond a reasonable doubt. Accordingly,
the Defendant is not entitled to relief as to this issue.
II. Sufficiency of the Evidence. The Defendant argues the evidence was
insufficient to support a conviction of aggravated robbery because the State failed to prove
(1) she was involved in the robbery and (2) she possessed a weapon during the robbery.
The Defendant further asserts that the victim advised the police that the perpetrators were
two men and failed to identify her in a photographic line-up. In response, the State
contends, and we agree, that the evidence is sufficient to support the conviction.
When a defendant challenges the sufficiency of the convicting evidence, the
standard of review 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, 99 S. Ct. 2781,
2789, 61 L. Ed. 2d 560 (1979); see also Tenn. R. App. P. 13(e) (2006) (“Findings of guilt
in criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt.”).
This standard applies to convictions based upon direct, circumstantial, or a combination of
both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93
(Tenn. Crim. App. 1999). The State, on appeal, is entitled to the strongest legitimate view
of the evidence and all legitimate or reasonable inferences which may be drawn from that
evidence. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). All questions involving the
credibility of witnesses, the weight and value to be given the evidence, and all factual issues
are resolved by the trier of fact, and this court will not reweigh or reevaluate the
evidence. State v. Sutton, 166 S.W.3d 686, 689-90 (Tenn. 2005). This court has stated
that “[a] guilty verdict by the jury, approved by the trial court, accredits the testimony of
9
the witnesses for the State and resolves all conflicts in favor of the prosecution’s
theory.” Bland, 958 S.W.2d at 659 (citation omitted). A guilty verdict also “removes the
presumption of innocence and replaces it with a presumption of guilt, and the defendant
has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id. (citation omitted).
The State had to prove beyond a reasonable doubt that the Defendant committed the
offense of aggravated robbery. Aggravated robbery is a robbery “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[.]” Tenn. Code Ann. § 39-13-402(a)(1).
“Robbery is the intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a).
Viewed in the light most favorable to the State, the proof fully supports the
Defendant’s conviction for aggravated robbery. The record shows the victim was robbed
at gunpoint by two perpetrators. Alexis Bell was present during the robbery and later
identified the Defendant as one of the armed perpetrators of the offense. Aqua Herman
testified that the Defendant admitted to being involved in the robbery of the victim and that
the guns that were used were in Herman’s truck. A gun box matching the same type of
gun used in the robbery was seized from the Defendant’s mother’s home and photographs
of the Defendant holding the same type of gun were admitted into evidence. Finally, after
waiving her rights under Miranda, the Defendant confessed to the armed robbery of the
victim. The Defendant does not dispute that an aggravated robbery occurred in this case.
Instead, she points to various inconsistencies within the witnesses’ testimony as grounds
for relief. As previously noted above, questions involving the credibility of witnesses are
matters entrusted to the jury, not this court. Accordingly, we conclude that
the evidence is sufficient to support the Defendant’s conviction for aggravated robbery.
III. Sentencing. As her last issue, the Defendant argues the trial court erred in
sentencing her to twelve years’ imprisonment, the maximum sentence within her range for
the offense. The extent of the Defendant’s argument is that the sentence is improper
because “there was no explanation as to why the trial court chose [the sentence] . . . [and]
no explanation as to why a lower sentence would be improper.” As such, the Defendant
argues this matter should be remanded for resentencing because the trial court “ignored the
principles of sentencing.” In response, the State contends, and we agree, that the trial court
properly imposed sentence.
We review the length of a sentence imposed by the trial court under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
708 (Tenn. 2012). “So long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by the trial court
within the appropriate range should be upheld.” Id. “If, however, the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow
10
the Sentencing Act, the presumption of correctness fails.” State v. Carter, 254 S.W.3d 335,
344-45 (Tenn. 2008).
A trial court must consider the following when determining a defendant’s
specific sentence and the appropriate combination of sentencing alternatives: (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 sections 40-35-113 and
40-35-114; (6) any statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee; and (7) any statement
the defendant wishes to make in the defendant’s own behalf about sentencing. Tenn. Code
Ann. §§ 40-35-210(b)(1)-(7). In addition, “[t]he potential or lack of potential for the
rehabilitation or treatment of the defendant should be considered in determining
the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5). The court
must impose a sentence “no greater than that deserved for the offense committed” and “the
least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Id. §§ 40-35-103(2), (4).
As a Range I, standard offender, the Defendant was subject to a sentencing range of
eight to twelve years for aggravated robbery, a Class B felony. See Tenn. Code Ann. §39-
13-402(a)(1); see also id. § 40-35-112(a)(3). Thus, the trial court’s twelve-year sentence is
within the statutory range and presumed reasonable.
There was no evidence other than the presentence report offered at sentencing. The
presentence report showed that the Defendant, age 30, had dropped out of high school in
the tenth grade. She completed the GED, earned a certification in HVAC, and completed
auto mechanics courses. She also had a prior history of criminal convictions consisting of
sale or possession of felony drugs, misdemeanor stalking and domestic assault, and a
driving related offense. The Defendant reported being in good health and having last used
marijuana and Xanax before she was incarcerated. She was previously employed with her
parent’s lawn business and several retail and fast-food establishments. Finally, as part of
her version of the offense, the Defendant stated as follows:
Basically I would like to ask the judge for leniency towards me. I’m being
overly charged and the case is from 2014. I’ve changed drastically in the last
5 years. I’m asking for help. I’ve never been probated or rehabilitated. I’ve
never been on probation. I did not play the part in this case that the
prosecutors are making it out to be. It is a defamation of my character. I
don’t steal at all. I’m scared to steal a piece of bubblegum. I just ask for
another chance with my life because I feel as if I’m being robbed of my tie.
The time I’m looking at is outrageous. I know murderers who get lesser time
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for robbing someone of their life. I just ask for leniency please and thank
you.
Following argument of the parties and prior to imposing sentence, the trial court
engaged in a lengthy discussion and noted its application of the appropriate sentencing
range, consideration of the presentence report, principles of sentencing, and possible
alternatives to incarceration. The trial court also considered the results of the validated risk
and need assessment, which determined the Defendant was a low risk. The trial court
considered enhancement factor one, that the Defendant had a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate
range, to be “strong.” The court did not find any mitigation factors applied and determined
the Defendant had not shown “an ounce of remorse or acceptance of responsibility[.]” The
trial court was particularly concerned with the Defendant’s comments within the
presentence report and characterized her as someone who believed she was “wronged.”
The trial court then imposed a within range sentence of twelve years’ imprisonment.
The Defendant does not identify how the trial court erred in imposing sentence, and
her assertion that the trial court failed to provide its reasoning in support of sentencing is
belied by the record. Because the Defendant has failed to show an abuse of discretion in
the trial court’s sentence or otherwise overcome the presumption of reasonableness
afforded to a sentence imposed within the applicable range, the judgment of the trial court
is affirmed.
CONCLUSION
Based on the above reasoning and analysis, we affirm the judgment of the trial court.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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