State of Tennessee v. Mario Nathaniel Wade

07/29/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 13, 2021
STATE OF TENNESSEE v. MARIO NATHANIEL WADE
Appeal from the Criminal Court for Davidson County
No. 2017-A-103 Jennifer Smith, Judge
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No. M2020-01518-CCA-R3-CD
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In this delayed appeal, Mario Nathaniel Wade, Defendant, challenges his convictions for
robbery and carjacking. Defendant asserts that the evidence was insufficient to support the
convictions, that the trial court erred by failing to require the State to make an election with
respect to the carjacking charge, and that he was sentenced improperly. After review, we
affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and J. ROSS DYER, JJ., joined.
Manuel B. Russ (on appeal), and Jay Clifton (at trial), Nashville, Tennessee, for the
appellant, Mario Nathaniel Wade.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Doug Thurman, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
On December 19, 2016, Claudia Valencia, the victim, went Christmas shopping in
Cool Springs before stopping to pick up some wings for dinner on the way home. When
she arrived at her apartment complex, she parked her car in the parking lot. As she opened
her car door, she was confronted by a man in a hoodie. He had a teardrop tattoo on his face
and said, “Give me your keys.” After that, the man “grabbed [her] purse” and “pulled it
out of [her] arm and then thr[ew] it in the passenger seat.” The man repeatedly demanded
the keys to the car. During the encounter, the man kept one of his hands inside the pocket
of the hoodie he was wearing. The man got in the victim’s car and started to drive away.
As the car drove away, the victim chased after it. Somehow, she managed to get the
passenger door to the car open. As the door came open, her purse fell out onto the
pavement. She heard a gunshot just before the man drove off in her car. The victim never
saw a gun but was scared and angry as a result of the incident.
Even though it was dark with very little lighting, the victim saw the man’s face
during the encounter. About forty-five minutes after the incident, the victim identified
Defendant as the suspect.
When Officer Miguel Garcia arrived at the scene of the incident, he found the victim
was “really upset. Kind of crying, kind of angry, . . . really emotional. . . .” A .25 caliber
shell casing was found on the street near the scene. A “be on the lookout” was issued for
the victim’s car. Police quickly located the car and followed it to a nearby apartment
complex. The vehicle was being driven by Defendant. Defendant parked near a mailbox
at the apartment complex. Defendant was arrested as he exited the vehicle. Six Hornady
25 caliber bullets were found in Defendant’s pocket.
A Phoenix Arms, semi-automatic .25 auto handgun was recovered near the mailbox
by someone at the apartment complex after the incident. The shells in the handgun matched
the brand of shells found in Defendant’s hoodie pocket. Ballistics testing of the shell casing
recovered from the scene of the incident matched a shell casing from an unidentified 2016
investigation.
Defendant did not present any proof at trial. The jury found Defendant guilty of
robbery and carjacking. At a sentencing hearing, Defendant maintained his innocence.
The trial court sentenced Defendant to an effective sentence of fifteen years as a Range II,
multiple offender.
There was no motion for new trial filed within the requisite time limit. Defendant
filed a petition for post-conviction relief and delayed appeal. The trial court granted
Defendant a delayed appeal and held the post-conviction petition in abeyance pending the
delayed appeal.
A motion for new trial was filed. The trial court denied the motion, and this appeal
followed.
Analysis
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Election
On appeal, Defendant first argues that the trial court erred by failing to require the
State to make an election of offenses with regard to the single indictment for carjacking
which listed two theories of the commission of the offense. While admitting that he failed
to raise the issue at trial or in a motion for new trial, Defendant argues that it was plain
error for the trial court to fail to require the State to choose whether they were seeking a
conviction on the basis of carjacking committed with the use of a deadly weapon or
carjacking committed by the use of force or intimidation. The State insists that Defendant
is not entitled to plain error review because there was no unequivocal rule of law breached.
Defendant was indicted in Count Two for carjacking. The indictment alleged that
Defendant “intentionally or knowingly [took] a motor vehicle from the possession of [the
victim] by use of a deadly weapon or by force or intimidation, in violation of Tennessee
Code Annotated § 39-13-404, . . . .” The trial court charged the jury with the entire
definition of carjacking which necessarily included two theories of the offense.
Defendant failed to raise this issue in a motion for new trial. Therefore, we may
consider this issue only under plain error review. See Tenn. R. App. P. 36(b); State v.
Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (“[W]hen ‘necessary to do substantial justice,’
this Court has the authority to ‘consider an error that has affected the substantial rights of
a party at any time, even though the error was not raised in the motion for a new trial or
assigned as error on appeal.’”) (quoting Tenn. R. App. P. 36(b)). For this Court to conclude
that plain error occurred, five prerequisites must be satisfied:
(a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a substantial
right of the accused must have been adversely affected; (d) the accused [must
not have] waive[d] the issue for tactical reasons; and (e) consideration of the
error [must be] “necessary to do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). All five factors have to be established in order to
get plain error relief. Id. at 283.
Here, there was no clear and unequivocal rule of law breached. Election of offenses
is required when there is evidence at trial that a defendant has committed multiple offenses
against a victim. The State must elect the facts upon which it is relying to establish each
charged offense. State v. Johnson, 53 S.W.3d 628, 630 (Tenn. 2001) (citations omitted).
When there is evidence of one offense, even if it can be committed in alternate ways, there
is no need for an election. See State v. Keen, 31 S.W.3d 196, 208-09 (Tenn. 2000) (“Our
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research reveals no case, however, in which we have held that the right to a unanimous
jury verdict encompasses the right to have the jury unanimously agree as to the particular
theory of guilt supporting conviction for a single crime.”) (citations omitted); State v.
Quadarious Devonta Bufford, No. W2018-00548-CCA-R3-CD, 2019 WL 3072121, at *7
(Tenn. Crim. App. July 12, 2019) (“When . . . there is evidence of only one offense, which
can be committed in alternate ways, there is no need for the State to elect the theory under
which it seeks conviction.”), perm. app. denied (Tenn. Dec. 10, 2019). Here, Defendant
was charged with one count of carjacking under alternate theories. No election was
required. Defendant is not entitled to plain error relief.
Sufficiency
Defendant next argues that the evidence was insufficient to support the guilty
verdicts. Specifically, Defendant argues that there “was a lack of unanimity as to the
means” in which Defendant committed the carjacking. Without pointing to any specific
deficiency in the State’s proof, Defendant argues that the State “failed to produce adequate
proof” to support the conviction for robbery. The State insists that the proof was sufficient
to support both convictions.
Well-settled principles guide this Court’s review when a defendant challenges the
sufficiency of the evidence. A guilty verdict removes the presumption of innocence and
replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).
The burden is then shifted to the defendant on appeal to demonstrate why the evidence is
insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
The relevant question the reviewing court must answer is whether any rational trier of fact
could have found the accused guilty of every element of the offense beyond a reasonable
doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). On
appeal, “the State is entitled to the strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn therefrom.” State v. Elkins, 102
S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from re-weighing or
reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990). We may not substitute our own “inferences for those drawn by the trier
of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions
concerning the credibility of the witnesses and the weight and value to be given to evidence,
as well as all factual issues raised by such evidence, are resolved by the trier of fact and
not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “The standard
of review ‘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 State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
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Defendant was convicted of carjacking and robbery. Carjacking is “the intentional
or knowing taking of a motor vehicle from the possession of another by use of: (1) [a]
deadly weapon; or (2) [f]orce or intimidation.” T.C.A. § 39-13-404(a). The proof
established that Defendant approached the victim as she was exiting her car. He demanded
her keys repeatedly, pulled her purse off of her arm and threw it in the passenger seat before
he took off in her car. The victim managed to open her car door and her purse fell out as
Defendant drove away in her car. She heard a gunshot as Defendant drove off. The victim
was upset and scared when officers arrived at the scene. The evidence was sufficient to
support the conviction for carjacking.
Defendant fails to present any argument with respect to the sufficiency of the
evidence supporting his robbery conviction other than to claim that the State “also failed
to produce adequate proof” of the crime. Therefore, this issue is waived. Tenn. Ct. Crim.
App. R. 10(b) (“Issues which are not supported by argument [or] citation to authorities . .
. will be treated as waived in this [C]ourt.”). Defendant is not entitled to relief on this issue.
Sentencing
Defendant challenges his sentence. He argues that the trial court entered into a
“sparse analysis” that was “entirely inadequate as a basis to enhance” Defendant’s sentence
above the minimum by failing to state the specific facts upon which it based the
enhancement factors. Defendant also argues that the proof did not support the application
of several enhancement factors. As a result, Defendant asks this Court to review the
sentence de novo. The State disagrees.
Appellate review of sentencing is for abuse of discretion. We must 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); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012)
(extending presumption of reasonableness to determinations regarding the manner of
service of a sentence). In making its sentencing determination, the trial court, at the
conclusion of the sentencing hearing, first determines the range of sentence and then
determines the specific sentence and the appropriate combination of sentencing alternatives
by considering: (1) the evidence, if any, received at the trial and the sentencing hearing;
(2) the pre-sentence 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 enhancement and mitigating factors;
(6) any statistical information provided by the Administrative Office of the Courts
regarding sentences for similar offenses; (7) any statements the defendant wishes to make
on the defendant’s behalf about sentencing; and (8) the potential for rehabilitation or
treatment. T.C.A. §§ 40-35-210(a), (b), -103(5); State v. Williams, 920 S.W.2d 247, 258
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(Tenn. Crim. App. 1995). The trial court is still required to place on the record its reasons
for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found,
and the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See Bise, 380 S.W.3d at 706 n.41; State v. Samuels,
44 S.W.3d 489, 492 (Tenn. 2001). Thus, under 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.” Bise, 380
S.W.3d at 710.
Here, the trial court determined that three enhancement factors applied—Defendant
had a previous history of convictions and criminal behavior in addition to those necessary
to establish the appropriate range; Defendant possessed a firearm during the commission
of the offense; and Defendant had no hesitation about committing a crime where the risk
to human life was high. T.C.A. §§ 40-35-114(1), (9), (10). The trial court sentenced
Defendant to concurrent sentences of eight years as a Range II offender for robbery and
fifteen years as a Range II offender for carjacking. The trial court sentenced Defendant to
a within-range sentence for each offense and followed the proper sentencing procedure.
The trial court did not abuse its discretion. Defendant is not entitled to relief on this issue.
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
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TIMOTHY L. EASTER, JUDGE
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