State of Tennessee v. Robert L. Adams

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 19, 2011 Session

STATE OF TENNESSEE v. ROBERT L. ADAMS

Direct Appeal from the Circuit Court for Rutherford County

No. F-61909B David Bragg, Judge

No. M2010-00916-CCA-R3-CD - Filed November 8, 2011

The defendant, Robert Lee Adams, fled justice while the jury was deliberating numerous

charges against him stemming from his participation in a drug-related shooting in 2007. The

jury found the defendant guilty of attempted first degree murder, a Class A felony; especially

aggravated kidnapping, a Class A felony; aggravated robbery, a Class B felony; and

conspiracy to commit kidnapping, a Class D felony. The defendant was sentenced in

absentia to an effective sentence of life without the possibility of parole plus twenty years.

The defendant’s trial counsel filed a timely motion for new trial. In response, the State

moved to dismiss the defendant’s motion on the grounds that the defendant had abandoned

his right to proceed by absconding from the court’s jurisdiction. After a hearing held while

the defendant was still in absentia, the trial court dismissed the defendant’s motion for a new

trial pursuant to the fugitive disentitlement doctrine and allowed the defendant’s trial counsel

to withdraw soon thereafter. Weeks later, the defendant was returned to custody, filed a pro

se notice of appeal, and was appointed new counsel. On appeal, the defendant argues that:

(1) the trial court erred by dismissing his motion for a new trial; (2) the evidence was

insufficient to support his convictions; (3) the trial court erred by denying his trial counsel’s

motion for a continuance; and (4) the trial court applied improper enhancement factors when

it sentenced him for his conspiracy and aggravated robbery convictions. The State argues

that we must dismiss the defendant’s appeal for lack of jurisdiction. We conclude that the

trial court properly dismissed the defendant’s motion for a new trial on the grounds that he

was a fugitive from justice but that, nonetheless, we have jurisdiction to review his appeal

now that he has been returned to custody. The absence of a motion for new trial, however,

limits our appellate review to considering the sufficiency of the evidence to support his

convictions and his sentencing. After thorough review, we conclude that sufficient evidence

supports the defendant’s convictions and that the trial court committed no error in sentencing

the defendant for conspiracy to commit kidnapping. While we conclude that the trial court

may have erroneously applied one of the several enhancement factors it used when it

sentenced the defendant for aggravated robbery, in light of the applicable sentencing

principles, remaining enhancement factors, and the particular facts of this case, we conclude

that the sentence imposed by the trial judge was appropriate. Accordingly, the judgments of

the trial court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD

W ITT, J R. and D. K ELLY T HOMAS, J R., JJ., joined.

T. E. “Ned” Williams, III, Franklin, Tennessee (on appeal), and Kirk D. Catron,

Murfreesboro, Tennessee (at trial), for the appellant, Robert L. Adams.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel;

William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The victim in this case, Ms. Darice Brown, was shot numerous times and left for dead

near an abandoned construction site during the late evening hours of December 15, 2007,

after she arranged a drug transaction on the defendant’s behalf. The defendant and three co-

defendants were indicted on August 6, 2008, by the Rutherford County Grand Jury on four

counts: attempted first degree murder in violation of Tennessee Code Annotated section 39-

13-202, a Class A felony; especially aggravated kidnapping in violation of Tennessee Code

Annotated section 39-13-305, a Class A felony; especially aggravated robbery in violation

of Tennessee Code Annotated section 39-13-403, a Class A felony; and conspiracy to commit

kidnapping in violation of Tennessee Code Annotated section 39-12-103, a Class D felony.

At the defendant’s trial on December 16-17, 2009, the victim took the stand and as testified

to the following:

On December 15, 2007, the defendant, whom she knew as “P.T.,” called her several

times to request that she find him some cocaine. The victim was aware of an individual,

whom she knew as “B.I.,” who lived in Murfreesboro and dealt in cocaine, from some prior

dealings with her cousin. Although she had not previously dealt with B.I., the victim called

B.I. on the defendant’s behalf and arranged to purchase some cocaine. B.I. told the victim

to meet him at the local Walmart. The victim passed along the location of the transaction to

the defendant.

The defendant arrived at the victim’s house in a car that also contained a large black

man and two white women. The victim had previously met one of the white women, Kristi

Ray (known to her as Michelle), through her cousin. The victim had also met the large black

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man, Bryant Overton (known to the victim under his alias “Debo”), on one occasion at the

defendant’s house. The remaining white woman, Kesha Adams (the defendant’s wife), was

a stranger to the victim and was introduced to her as “Cash.”

The victim initially refused to get into the vehicle with the defendant and the others,

explaining that she was uncomfortable traveling to Walmart accompanied by so many people.

However, the defendant assured her that “nobody’s not going to do anything to you,” and the

victim eventually got into the back seat of car, with the defendant sitting on one side of her

and Debo on the other.

When they arrived at the Walmart, the defendant, Debo, and the victim got out of the

car. The defendant and Debo stood against a wall while the victim went into the store and

had a conversation with B.I. B.I. inquired as to whom was with the victim, and when the

victim informed him, he refused to complete the deal. The victim exited the Walmart, and

the defendant and Debo followed her back to their car.

The defendant insisted that the victim continue to press B.I. to complete the deal. The

defendant told her to call B.I. back and inform him that “nothing was going to go wrong” and

that the defendant would send in his wife, Cash, along with the victim to complete the deal.

B.I. agreed, and the victim and Cash reentered the Walmart and exited from the other side,

where they met B.I. in the parking lot. Cash gave B.I. money in return for what appeared to

be cocaine. The two women then returned to the car.

The victim was again seated in the backseat of the vehicle between Debo and the

defendant. Debo suddenly exclaimed, “I know him [B.I.] from somewhere.” Debo went on

to indicate that he “had a beef with [B.I.].” According to the victim’s testimony, Cash then

informed the group that B.I. used to hang out with another unnamed individual, with whom

Cash and Debo were having a dispute. Immediately upon learning this, Debo asked the

defendant to give him a gun. The defendant passed a gun to Debo in front of the victim. The

victim immediately became frightened, as up until that point she had been unaware that there

was a gun in the car. The victim immediately told the defendant and Debo, “I don’t know

what this is about, but if you have a problem with [B.I.,] he’s two parking spots over.”

Rather than follow up on the victim’s implicit suggestion, Debo held the gun in his

lap while the defendant instructed the victim to call B.I. and attempt to lure him to a nearby

Baskin-Robbins. B.I. did not answer his phone. The car’s driver, Michelle, volunteered that

she thought she knew where B.I. lived. She proceeded to drive the group around the

Murfreesboro area for about 30 to 45 minutes, ostensibly in search of B.I.’s house. The

victim remained continuously trapped between Debo and the defendant in the back seat of

the car throughout the entire trip. All of the car’s occupants remained very quiet except for

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Debo, who kept accusing the victim of lying and of knowing B.I.’s whereabouts.

At some point during their vain attempt to locate B.I.’s residence, the defendant tried

some of the cocaine that Cash had purchased and announced that the narcotic at issue was

dissatisfactory. The defendant then handed the cocaine to Cash, who also tried some and

concurred in his assessment. Upon hearing this, Debo announced, “I know exactly where

we’re going to go.” Debo then began giving Michelle meticulous instructions as to where

to drive the vehicle. The victim looked to the defendant for some sign of solace, but the

defendant simply lowered his head and stated “somebody’s going to die tonight.”

After witnessing these events, the victim panicked. She offered the group money and

begged for them not to shoot her. She hid her cell phone between her legs and surreptitiously

tried to call for help. However, Debo detected these efforts and took her phone away from

her. The car continued along various back roads in the dark for some distance, until the

victim could not see any more houses. Then Debo told Michelle to stop the car and then to

back the vehicle up. Debo exited one side of the vehicle and told the victim to get out as

well. When she failed to move, he grabbed her and pulled her out. While still holding the

gun, he took her purse and jacket.

After she had been taken out of the car and deprived of her personal belongings, the

victim heard the gun go off and felt herself being shot in the leg. She fell over and tried to

play dead. As the victim did her best to hold herself both completely still and absolutely

quiet, Debo shot her repeatedly. Finally, the victim heard a click emanate from the gun,

indicating to her that its last bullet had been fired. The victim testified that she had been

frozen staring at Debo’s feet throughout the entire ordeal and that she saw Debo re-enter the

vehicle afterward. Then she heard someone yell “go” and the car sped off – coming so near

to hitting her in the process that she could feel the gravel kicked up by its tires landing on her

bleeding body as the vehicle bolted away.

For some time afterward, the victim lay in the dark and prayed. After a time, she

realized that she could hear traffic but knew that she was nowhere near a road. The victim

testified that although her legs were no longer working, she managed to crawl on her elbows

through the mud until she reached the highway. Once there, she crawled into the middle of

the pavement and collapsed across the yellow lines in the center of the thoroughfare. Soon

thereafter, she heard a car approach and attempted to signal it with her arms. The car came

perilously near to her body before stopping. A man and a woman got out of the vehicle, and

she heard them call the police and an ambulance.

The victim testified that she was life-flown to Vanderbilt Hospital and was treated

there for several weeks. She had liver damage and a fractured pelvis. She underwent

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operations to place screws in her left knee, to place a rod from her hip down to her knee, and

to reverse a colostomy. The victim was required to wear a colostomy bag for many months.

She also had numerous surgeries to remove hernias and scar tissue. The victim testified that

at the present time, she was still undergoing physical and mental therapy as a result of the

incident and had been unable to return to work.

Before leaving the stand, the victim discussed her prior criminal record, which

included a conviction for conspiracy to sell drugs. The victim also identified the defendant,

Robert Adams, as the person who had accompanied Debo on the night that she was shot and

as the person to whom she had referred to variously as “P.T.” and “Tracy” during the ensuing

investigation and court proceedings. The victim stated that she had never recovered either

her cell phone or her purse after the night that she was shot.

Following the victim’s testimony, the State presented the testimony of Officer Ty

Downing of the Rutherford County Sheriff’s Department, who responded to a call on Beasley

Road the night of December 16, 2007, concerning a female that had been found in the middle

of the roadway and had been shot multiple times. Officer Downing testified that upon his

arrival, the victim had already been transported from the scene by medical personnel. Officer

Downing was informed on the scene that the victim had told other officers that, prior to being

shot, she was in the company of two black males named “P.T.” and “Debo” and two white

females named “Cash” and “Michelle,” and that they were driving a green car. He was

further informed that the shooting was related to a drug deal and that the victim had been

shot by a man named Debo. Officer Downing testified that he interviewed the individuals

who had found the victim in the road: Alissa Phillips, Ryan Trotter, and Stevie Trotter. In

addition, Officer Downing secured and processed the crime scene, which was near a

construction site. During this process, Officer Downing testified that he recovered five .380

caliber shell casings from the scene, as well as a woman’s purse containing no money.

Later that same day, Officer Downing testified that he contacted the victim at

Vanderbilt Hospital. Although the victim was unable to talk, she was able to write down

answers to certain questions on a notepad. The victim identified “Debo” and the defendant

(under his alias “Tracy”) as her shooters. Officer Downing prepared two separate photo

lineups, one containing the defendant Robert Adams’ photo and one containing Kesha

Adams’ photo. The officer testified that the victim identified the defendant Robert Adams

as “P. T.” and Kesha Adams as “Cash.” Soon afterward, Officer Downing testified that he

called the defendant and spoke with him briefly by phone. Together, they scheduled an

appointment for the defendant to come in for questioning. When the defendant failed to keep

that appointment, Officer Downing obtained a warrant for his arrest.

Following his arrest, the defendant was given his Miranda warnings, after which he

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consented to give a videotaped statement to police. In that statement, the defendant admitted

to being one of the people in the car with the victim on the night that she was shot and

admitted that he had gotten out of the car in order to let the victim out before Debo shot her.

After giving this testimony concerning the defendant’s police interview, Officer Downing

authenticated a number of photographs of the crime scene and identified the defendant as

Robert Adams, also known as “P.T.” and “Tracy.”

Next, the State presented the testimony of Ms. Stevie Trotter, Mr. Ryan Trotter, Mr.

Michael Glossup, and Ms. Alissa Phillips, who generally testified that they were all returning

home from a Christmas party around midnight when they discovered the victim lying in the

middle of the road. They testified that they initially thought that some trash had blown into

the road, until the victim raised up her hand in an attempt to flag them down. They testified

that they quickly swerved their vehicle and barely avoided hitting her. They further testified

that the victim was shivering with cold and was having difficulty speaking when they found

her but that she did manage to inform one of them that someone named “Debo” had shot her.

Thereafter, the State presented the testimony of Officer Philip Martin of the

Rutherford County Sheriff’s Department, who testified that he photographed the crime scene

on the night in question and secured certain evidence, including pieces of the victim’s

clothing. These were later admitted into evidence. On cross-examination, Officer Martin

testified that no gun was ever recovered from the crime scene and that no fingerprints were

found on any of the shell casings that were found that night.

The State’s next witness was Officer Duane Jackson of the Rutherford County

Sheriff’s Department, who testified that he assisted Officer Downing in the investigation and

participated in a number of witness interviews. Officer Jackson confirmed that the victim

identified the defendant from a photo lineup soon after the shooting. Officer Jackson also

confirmed that after having been given his Miranda warnings the defendant told detectives

a number of different stories concerning the events on the night of the shooting – but that he

admitted to being in the vehicle with the victim on the night that she had been shot. Officer

Martin testified that in the defendant’s final version of the events, the defendant maintained

that he had dropped off Debo and the victim at the construction site and that as he was

driving off, he heard shots being fired. He then returned to pick up Debo alone. Officer

Jackson identified a digital video disk (DVD) containing the defendant’s recorded police

interview, and this DVD was entered in the evidence.

Finally, the State presented the testimony of Dr. Richard Miller, the medical director

of the trauma unit at Vanderbilt University Medical Center, who gave extensive testimony

concerning the wounds suffered by the victim on the night in question. Dr. Miller testified

that the victim underwent numerous operations, developed multiple complications, and

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would probably suffer from permanent disabilities from her injuries. Dr. Miller also testified

that, in his expert opinion, the victim would have died had she not received timely medical

treatment. Following this testimony, the State rested.

The defense promptly moved for a judgment of acquittal on the grounds that there was

insufficient evidence that the defendant, as opposed to Debo, had attempted to kill the victim,

kept her in the vehicle against her will, or deprived her of her property. After the court

denied this motion, the defendant was advised of and waived his right to testify in his own

defense pursuant to the procedures described in Momon v. State, 18 S.W.3d 152, 162-64

(Tenn. 1999).

Following the usual Momon soliloquy, the defendant’s trial counsel made an oral

motion for a continuance on the unusual grounds that “at [one] a.m. this morning I received

a phone call from my client who left me a message about a witness we just learned about.

He’s not listed in the court documents or anything like that,” and “we’d ask you for an

opportunity to subpoena this gentleman to get him here to testify.” The trial court held a

brief hearing and took testimony from the defendant concerning this alleged witness, who

was supposedly named “Jeremy Jenkins.” According to the defendant, “Mr. Jenkins” had

been reluctant to come forward previously because he was married and was having an affair

with the victim. According to the defendant, “Mr. Jenkins” had called him the night before

and had promised him that he would testify in the defendant’s defense. The defendant

claimed that “Mr. Jenkins” would testify that the victim had stated to him during their affair

that “she knew that I didn’t have anything to do with this . . . [a]nd the only reason that she

was upset with me is because I did not stop it.” On cross-examination, the defendant testified

that “Mr. Jenkins” would not come to court without receiving a subpoena, that he did not

know the location where “Mr. Jenkins” worked, that “Mr. Jenkins” refilled snack machines

for a living, and that “Mr. Jenkins” was not allowed to bring a phone with him into the

building where he worked.

After hearing this testimony, the trial judge stated that the issue of this surprise

witness should have been brought to his attention earlier in the morning. Nonetheless, the

trial court granted the defense a two-hour continuance in order to afford the defendant the

opportunity to secure this alleged witness. When this continuance had expired, the

defendant’s trial attorney rested his case, and both sides made their closing arguments. The

court instructed the jury, and the jury retired. At some point after receiving the continuance

and while the jury was deliberating, the defendant, who was out on bond during the trial,

absconded from the building and fled the area.

The jury returned after deliberating and found the defendant guilty of attempted first

degree murder, a Class A felony; especially aggravated kidnapping, a Class A felony;

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aggravated robbery, a Class B felony; and conspiracy to commit kidnapping, a Class D

felony. After the verdict was announced, the trial judge queried the defendant’s trial counsel

concerning the defendant’s whereabouts, and the defendant’s counsel informed the court that

the defendant had sent him a text message claiming that he was on his way to the hospital.

The defendant’s trial counsel suggested that the defendant may have intended to visit a

brother there who allegedly suffered from multiple sclerosis.

The record reveals that the defendant remained at large for many weeks. On February

12, 2010, a sentencing hearing was held while the defendant was still in absentia. At this

hearing, the trial court heard testimony from Ms. Candace Whizman, the director of

Management Services at the Tennessee Department of Correction, who testified that she had

compared the department records of the defendant Robert Adams with an individual known

as Tracy Greer and, based on a comparison of their photographs and their matching date of

birth, concluded that they were the same individual. She further testified that the defendant,

under the name Tracy Greer, had a criminal record including a conviction for second degree

murder. The department records under both names were entered into evidence.

The State also presented the testimony of Agent Suzann Lafferty of the Tennessee

Bureau of Investigation, who testified that she was a forensic scientist specializing in

fingerprints. Agent Lafferty testified that she had conducted a fingerprint analysis of Mr.

Tracy Greer and the defendant Robert Adams and determined that the two sets of fingerprints

matched. A report summarizing her finding was entered into evidence. Finally, the State

presented the testimony of Merilynn Raney, a presentence investigator for the Tennessee

Board of Probation and Parole. Ms. Raney testified that she had investigated and determined

that the defendant had an alias, Tracy Greer, and that he had an alternate social security

number associated with that alias. She testified that she had prepared a presentence report

for the defendant including information pertaining to his alias, and this report was entered

into evidence.

Following this testimony, the trial court found that the defendant Robert Adams and

Tracy Greer were the same individual. Based on the defendant’s criminal history, the trial

court applied Tennessee’s three strikes law, Tennessee Code Annotated section 40-35-120,

and found beyond a reasonable doubt that the defendant was a repeat violent offender –

thereby sentencing him to mandatory sentences of life without the possibility of parole for

the attempted first degree murder conviction and the especially aggravated kidnapping

conviction, with these sentences to be served concurrently.

In addition, the court sentenced the defendant as a Range II, multiple offender on the

two remaining counts, finding as enhancing factors that the defendant had a previous history

of criminal convictions and behavior above that necessary to establish his range; the

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defendant was the leader in the commission of an offense involving two or more actors; the

defendant allowed the victim to be treated with exceptional cruelty; the damage to the victim

was particularly great; the defendant employed a firearm during the commission of the

offense; and the defendant had no hesitation about committing a crime where the risk to

human life was high. The trial court found no mitigating factors. After duly considering and

weighing these factors, the court sentenced the defendant to twenty years to be served at

thirty-five percent for the aggravated robbery and to eight years to be served at thirty-five

percent for the conspiracy to commit kidnapping, with these two sentences to be served

concurrently. However, because the trial court found that the defendant was a career

criminal, a dangerous offender, and an offender whose record of criminal activity was

extensive, the trial court ordered the latter two concurrent sentences to be served

consecutively to his concurrent sentences of life without the possibility of parole.

On March 2, 2010, the defendant’s trial counsel filed a timely motion for a new trial.

On March 12, 2010, the trial court held a hearing on that motion. The State moved to dismiss

the motion on the grounds that the defendant was a fugitive from justice. The trial court

ruled that the defendant had waived his opportunity to present a motion for new trial and

dismissed the motion; a written order to that effect was signed by the trial judge on March

22, 2010, and stamped as filed by the clerk on March 23, 2010.

Also on March 12, 2010, the defendant’s trial counsel moved to withdraw from

representation on the grounds that the defendant had made himself unavailable to assist in

his own defense. This motion was granted on March 24, 2010.

On April 15, 2010, under circumstances that do not appear in the record, the defendant

was returned to the custody of the State. The defendant, acting pro se, filed a notice of

appeal, and what appears to be the original copy of that notice has been included in the

record. The seemingly-original copy bears a color-ink “filed” date stamp reflecting that it

was filed with the deputy clerk on April 21, 2010 – meaning that the notice appeal was filed

within thirty days following the filing of the trial court’s written order dismissing the

defendant’s motion for a new trial, and was therefore timely under Rule 4(a) of the

Tennessee Rules of Appellate Procedure.1 This court appointed new counsel to represent the

1

Whether the defendant filed a timely notice of appeal has become a matter of considerable

confusion to the parties and this court. The defendant’s appellate counsel filed a “Motion for Waiver of

Untimely Notice of Appeal” on December 28, 2010, which was granted by this court on January 18, 2011.

Following this motion, both sides appear to have proceeded under the erroneous assumption that the

defendant’s notice of appeal was untimely. The State’s brief on appeal states in its Statement of the Case

that the defendant’s notice of appeal was untimely, and both sides state in their briefs that it was filed on

April 22, 2010. In addition, the actual text of the defendant’s notice of appeal states that he was intending

(continued...)

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defendant on September 28, 2010, and granted multiple extensions of time to the parties in

which to file their briefs. Oral argument concerning this matter occurred on July 11, 2011,

in Nashville before a panel of this court. Our decision follows.

I.

The defendant’s first claim is that the trial court erred in dismissing his motion for a

new trial on the grounds that he was a fugitive from justice. The defendant’s claim of error

is based on his assertions that (1) the Tennessee Supreme Court’s decision establishing the

fugitive disentitlement doctrine, Bradford v. State, 202 S.W.2d 647, 648-49 (1947), should

not be applied on the facts of this case and was, in essence, wrongly decided, and (2) there

is no evidence in the record that the defendant’s absence from the trial court’s hearing on his

motion for a new trial was voluntary. We conclude that the defendant’s motion for a new

trial was properly dismissed because the defendant remained a fugitive from justice while his

motion was pending in the trial court.

The State argues that in light of the fact that the defendant’s motion for a new trial

was properly dismissed, this court lacks jurisdiction to review the defendant’s appeal. We

conclude that we have jurisdiction to review this particular defendant’s appeal for limited

purposes, as explained more fully below.

A.

With respect to the defendant’s first argument – that Bradford should not be applied

because its rationale is inapplicable to the facts of this case and because the defendant’s trial

counsel stood ready, willing, and able to pursue the defendant’s motion for a new trial on his

behalf – the picayune distinctions drawn by the defendant between the facts of his situation

1

(...continued)

to notify the courts of his intent to appeal on April 22, 2010. Finally, a photocopy of the defendant’s notice

of appeal, attached to Volume III of the technical record of this case, bears an image of a date stamp from

the deputy clerk that appears to have been altered with a felt-tip pen. The date on the copy of that notice,

as altered, is April 22, 2010. The confusion appearing in the record concerning the date on which the

defendant’s notice of appeal was filed and the date on which his motion for new trial was denied is especially

unfortunate in light of the fact that the timeliness of the defendant’s notice of appeal in this case is a matter

of crucial importance to the proper resolution of the applicability of the fugitive disentitlement doctrine, one

of key legal issues raised in the appeal. However, our comparison of the “filed” date stamp on what appears

to be the defendant’s original notice of appeal with the “filed” date stamped on the copy of the trial court’s

order dismissing the defendant’s motion for new trial included in the record leads us to the conclusion that

the defendant’s notice of appeal was filed in a timely fashion; any confusion over this issue should not inure

to the detriment of the defendant.

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and the facts confronting the court in Bradford render his argument tantamount to a plea that

Bradford was wrongly decided and should be overturned. This court is without power to

overrule the Tennessee Supreme Court’s Bradford decision, which held that “a defendant

who escapes and becomes a fugitive from justice while his motion for a new trial is pending”

has “by his own act . . . waived the right to have his motion for a new trial considered and

determined.” Id. at 648. The “fugitive disentitlement doctrine,” as this principle has become

known, is “long-established in the federal and state courts, trial and appellate,” and has

recently been reaffirmed by our supreme court. Searle v. Juvenile Court for Williamson

County, 188 S.W.3d 547, 550 (Tenn. 2006). Legally, this court cannot accept the defendant’s

invitation to alter or amend the fugitive disentitlement doctrine as expounded by our supreme

court.

Nor would we be inclined to dispense with such an important bedrock doctrine of law

even had we the authority to do so. As the Bradford court eloquently reasoned, “the

proceedings [concerning a motion for new trial] are commenced and prosecuted by the

defendant,” not the State, and consequently the defendant’s act of fleeing the jurisdiction

“[i]s in legal effect an abandonment of the prosecution of his motion.” Bradford, 202

S.W.2d at 647-49. Moreover, if an absconded defendant’s motion for new trial is denied, he

“cannot be made to respond to any judgment which may be rendered,” and any “order and

judgment based thereon may never be enforced because the defendant by escaping has placed

himself beyond the control of the court.” Id. at 648. As a matter of policy, courts should not

“give their time to proceedings which, for their effectiveness, must depend upon the consent

of an escaped convict.” Id. at 648. All of this reasoning applies with full force to the facts

presented by the case at bar.

We fundamentally agree that the fugitive disentitlement doctrine “is sound public

policy to discourage the absence and flight of those individuals who disagree with court

orders and judgments but still seek [judicial] relief.” Searle, 188 S.W.3d at 551. As Searle

indicates, it is contrary to public policy to allow a fugitive from justice to be placed in a

better legal position than a defendant who has continuously submitted to judicial authority,

by affording the former the privilege of taking advantage of any favorable ruling while

avoiding all consequences of any adverse one. Given that this defendant chose to evade the

trial court’s power while his motion for new trial was pending, the trial court did not err in

dismissing his motion.

B.

Nor did the trial court err by finding that the defendant was voluntarily absent from

his hearing on his motion for a new trial. In its order dismissing the defendant’s motion, the

trial court found that “the defendant left the jurisdiction by his own actions” and “has not

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been located since his trial.” This conclusion is amply supported by the record evidence,

which reflects that the defendant was absent from the conclusion of his trial, his sentencing

hearing, and the hearing on his motion for a new trial. Presiding over the proceedings at

issue, the trial court was free to take judicial notice of the defendant’s absence. Tenn. R.

Evid. 201 (2007).

Once a defendant’s absence from the relevant court proceedings has been established,

the defendant, to avoid application of the fugitive disentitlement doctrine, is obliged to

establish that his absence was involuntary. In this sense, application of the fugitive

disentitlement doctrine can be compared to the crime of failing to appear in court, see T.C.A.

§ 39-16-609 (2011), in that once it has been established that a defendant has failed to appear

in court on the required date, the defendant bears the burden of establishing that there was

a reasonable excuse for his absence (viz., that his absence from court was involuntary).

In this case, the record fully establishes that the defendant was not in court and that

he did not attend his hearing on the relevant date. The defendant made no attempt in the

court below and has made no attempt on appeal to advance any theory under which his

absence could be deemed involuntary – much less directed us toward any record evidence

that might support such a theory. Under these circumstances, the trial court committed no

error in finding that the defendant was voluntarily absent from the proceedings.

C.

In light of our rejection of the defendant’s arguments as described above, the State

argues the consequence should be the dismissal of the defendant’s appeal. Because the

defendant’s motion for a new trial was dismissed, rather than denied, the State claims that

the defendant does not have the right to appeal the order under Rule 3 of the Rules of

Appellate Procedure, and therefore this court is without power to hear the appeal. The State

quotes the Tennessee Supreme Court’s decision in Byington in support of this position: “Rule

4 dictates that after the defendant filed his motion for new trial, the Court of Criminal

Appeals did not have jurisdiction to hear the defendant’s appeal until the trial court entered

an order denying the motion for new trial.” State v. Byington 284 S.W.3d 220, 225 (Tenn.

2009) (emphasis supplied). Because the trial court entered an order dismissing – not denying

– the defendant’s motion as abandoned, the State urges that Byington precludes our exercise

of jurisdiction.

The plain implication to be drawn from the State’s argument is that any order by a trial

court dismissing a motion for new trial is essentially insulated from ordinary review by this

court. In reaching this conclusion, the State misapprehends the language it has quoted from

Byington. The Byington court was deciding an entirely unrelated issue: whether minute

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entries would satisfy the requirement that there be an “entry of [an] order denying a new

trial” for purposes of commencing the thirty-day deadline for filing a notice of appeal

pursuant to Tennessee Rule of Appellate Procedure 4, or whether a separate written order

denying the motion was required. See Byington, 284 S.W.3d at 224-25. In other words, the

issue was “what action a trial court must take to demonstrate that the trial court has denied

a motion for new trial.” Id. at 224. The jurisdictional quandary facing the appellate court

was whether the trial court had finally disposed of a timely motion for new trial. In this case,

the record reflects that the trial court disposed of the defendant’s motion for a new trial by

entering a written order dismissing the motion on March 23, 2010. There is no issue as to

whether the lower court has entered an order disposing of the defendant’s motion; the trial

court’s final decision has been amply evidenced.

Although Byington speaks in terms of an order denying, rather than dismissing, a

motion for new trial, the mere fact that a motion for new trial was dismissed rather than

denied in the trial court has not been held to bar to this court’s jurisdiction. See, e.g., State

v. Wayne Miller, No. W2005-00678-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 1281, at

**9-10 (Tenn. Crim. App. Dec. 16, 2005). What matters for jurisdictional purposes under

Tennessee Rule of Appellate Procedure 4 is whether there is still a pending motion for new

trial in the trial court, i.e., whether the trial court retains jurisdiction over the case. This court

may not assume appellate jurisdiction over a case pursuant to that rule while jurisdiction

properly remains in the court below, meaning that either (1) no final judgment has been

entered or (2) any pending motion listed in Rule 4(c), such as a motion for new trial, has not

been disposed of with finality. See Hutchison v. ARO Corp., 653 S.W.2d 738, 740 (Tenn.

Ct. App. 1983) (holding this court lacks jurisdiction to review an appeal “filed prior to the

disposition of [a] motion for a new trial” because “[t]here has been no final disposition

below”). In this case, the record is clear that there is no pending motion for a new trial in the

lower court. Consequently, this court has the power to assume appellate jurisdiction

consistent with the Tennessee Rules of Appellate Procedure.

Nor is this court required to dismiss the defendant’s appeal itself under the fugitive

disentitlement doctrine. While it is established that a defendant “waive[s] his right to pursue

a direct appeal from his convictions and sentences [if] he escaped and remained on escape

status during the time in which a direct appeal should have been pursued,” see Curtis v. State,

909 S.W.2d 465, 468 (Tenn. Crim. App. 1995), we have determined that this defendant was

returned to justice and filed a timely notice of appeal prior to the expiry of the time permitted

by Tennessee Rule of Appellate Procedure 4. Precedent establishes that if a defendant

perfects an appeal, temporarily escapes, but is returned to custody by the time of the appeal’s

consideration, his appeal should not be dismissed. See Knight v. State, 229 S.W.2d 501, 501

(1950). The present defendant’s situation – escaping, but returning in time to perfect his

appeal and remaining in custody thereafter, is analytically similar: “the defendant is in

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custody and the judgment of the Court can be enforced.” Id. Consequently, while Searle,

Bradford, and Curtis would dictate dismissal of the defendant’s appeal if he had remained

a fugitive (1) past the deadline for filing a notice of appeal or (2) at the time of his appeal’s

consideration; this defendant was returned to custody in time to file a timely notice of appeal,

did so, and has remained in custody throughout the consideration of this appeal. Under these

circumstances, this court will not dismiss his appeal pursuant to the fugitive disentitlement

doctrine.

However, as Searle and Bradford indicate, a fugitive from justice who has been

returned to state custody should not be placed in any better position than a defendant who has

remained in consistent submission to the court’s authority. Consequently, as the defendant’s

motion for a new trial was properly dismissed as abandoned in the court below, we will place

the defendant in the same position as a defendant who has appealed after neglecting to file

a motion for a new trial. Under these circumstances, it is well established that this court’s

review is limited to considering the sufficiency of the evidence to support his convictions and

his sentences. See, e.g., State v. Vaughn, 279 S.W.3d 584, 593 (Tenn. Crim. App. 2008);

State v. Boxley, 76 S.W.3d 381, 390 (Tenn. Crim. App. 2001); State v. Patterson, 966 S.W.2d

435, 440 (Tenn. Crim. App. 1997).

All other claims are deemed waived pursuant to Rule 3(e) of the Tennessee Rules of

Appellate Procedure, including, for purposes of this appeal, the defendant’s claim that the

trial court erred by denying his last-minute motion for an extended continuance to secure the

testimony of “Mr. Jenkins.” We decline to engage in plain error review of this claim under

Rule 13(b) of the Tennessee Rules of Appellate Procedure on the grounds that such review

is not necessary to prevent needless litigation, prejudice to the judicial process, or injury to

public interest. The defendant raises no colorable claim that the trial court’s failure to grant

an extended continuance struck at the fairness or integrity of his judicial proceedings – a

prerequisite that must be satisfied before this court will engage in plain error review in light

of the defendant’s waiver. See, e.g. State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim.

App. 1983).

II.

The defendant claims that the evidence was insufficient to support his conviction for

conspiracy to commit kidnapping and that the State failed to establish by sufficient evidence

that the defendant was criminally responsible for Debo’s actions when he committed the

attempted first degree murder, especially aggravated kidnapping, and aggravated robbery of

the victim. These claims have no merit.

With respect to sufficiency of evidence challenges, a jury’s guilty verdict strips a

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defendant of the presumption of innocence and replaces it with a presumption of guilt. State

v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Defendants must strive to overcome this

presumption on appeal. Id. The defendant has not met this burden. The defendant generally

claims, as he did at trial, that he did not do anything but try to arrange a drug transaction and

sit in a car. He claims he should not be held responsible for the criminal actions that were

committed by Debo and that Debo alone should be held responsible for the victim’s

kidnapping, robbery, and shooting. However, “[w]hen the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing the evidence in the light most

favorable to the State, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Dorantes, 331 S.W.3d at 379; see also Tenn. R. App. P.

13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). In this case, a jury listened to the

defendant’s arguments and roundly rejected them. Record evidence amply supports the

jury’s conclusion.

The defendant first argues that the evidence was insufficient to support his conviction

for conspiracy to commit kidnapping. Conspiracy “is committed if two (2) or more people,

each having the culpable mental state required for the offense that is the object of the

conspiracy, and each acting for the purpose of promoting or facilitating commission of an

offense, agree that one (1) or more of them will engage in conduct that constitutes the

offense.” T.C.A. § 39-12-103(a) (2007). The defendant claims that there is no evidence of

any “concert of design” among the group on the night in question, and that there is also no

evidence that the defendant was aware that the object of the group’s conspiracy on the night

in question was to kidnap the victim, rather than merely to obtain illegal drugs.

However, circumstantial evidence abounds in the record in support of the jury’s

conclusion that the defendant participated in a group conspiracy to kidnap the victim and that

this conspiracy was separate and apart from any conspiracy to purchase illegal drugs. The

victim’s testimony, alone, to the effect that the defendant (1) urged her to get into a vehicle

occupied by the group to facilitate a drug transaction, (2) handed a weapon to Debo after that

drug transaction had been completed, (3) stated after sampling the drugs – well after the

completion of the drug transaction – that “somebody’s gonna die tonight,” (4) remained quiet

in the car, with his body in a position blocking the victim’s only means of egress, as Debo

directed the group to a remote location, and (5) sped off in the car with the group after

someone yelled “go” following the shooting fully suffices to support the jury’s determination

that the defendant was part of a group agreement whose purpose was to kidnap the victim

and that this conspiracy was separate and apart from any uncharged conspiracy to purchase

illegal drugs.

Next, the defendant argues that the evidence was insufficient to establish that he was

criminally responsible for the crimes committed by Debo. An individual may be found guilty

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of crimes committed by another “if the offense is committed by . . . the conduct of another

for which the person is criminally responsible.” T.C.A. § 39-11-401. An individual is

criminally responsible for the conduct of another when “[a]cting with intent to promote or

assist the commission of the offense, or to benefit in the proceeds or results of the offense,

the person solicits, directs, aids, or attempts to aid another person to commit the offense. .

. .” T.C.A. § 39-11-402(2). The evidence adduced at trial suffices to support the jury’s

conclusion that the defendant was criminally responsible for Debo’s conduct when Debo

committed the especially aggravated kidnapping, aggravated robbery, and attempted murder

of the victim.

Concerning the defendant’s criminal responsibility for Debo’s commission of the

especially aggravated kidnapping, the victim’s testimony establishes that the defendant

brought a firearm with him to the victim’s house; enticed the victim into a vehicle; blocked

the victim’s means of egress from one side of the vehicle while she was driven around town,

and ultimately to the construction site, against her will; and handed Debo the firearm which

was used to intimidate the victim. The defendant’s tape-recorded interview with police

further reveals that he exited the vehicle in order to allow Debo to remove the victim from

the car prior to shooting her. This evidence was more than sufficient for a reasonable jury

to conclude that the defendant intended to assist, and in fact assisted, in the especially

aggravated kidnapping of the victim.

Concerning the attempted first degree murder, in addition to the evidence discussed

above, the victim testified that prior to being driven to the location where she was shot, the

defendant stated that “somebody’s gonna die tonight.” Given the fact that he had previously

supplied Debo with a weapon and in light of the victim’s testimony concerning the events

that followed, a reasonable jury was free to conclude that the defendant directed, or at least

assisted, in Debo’s attempt to murder the victim and that he fully intended to do so.

Concerning the aggravated robbery, the victim testified that the defendant was upset

after discovering that he had purchased bad cocaine and spent considerable time in hushed

discussions with his wife, Cash, after discovering the drugs were unsatisfactory. The victim

testified that the defendant kept her trapped in the car next to Debo and that he permitted

Debo to take her cell phone while she was being driven to a remote location. Once there, he

permitted Debo to remove her purse and jacket, and drove away with him following her

shooting. Investigating officers testified that neither the money from the victim’s purse nor

her cell phone were ever recovered. This testimony, combined with the testimony discussed

previously, supports a conclusion that the defendant intended to assist Debo in the aggravated

robbery of the victim.

There are, admittedly, a modest number of conflicting inferences that a jury might

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have drawn from all the evidence adduced at the defendant’s trial. The defendant urges that

he gave the gun to Debo not to assist with the crimes that followed, but as protection against

some perceived danger posed by B.I. The defendant urges that he was merely sitting next

to the victim in the car, and not “blocking” her means of egress from the vehicle, as she was

being driven to the site of the shooting. The defendant argues that he failed to take any steps

to prevent Debo’s crimes because he was too frightened. The law is clear, however, that

“‘the State must be afforded the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn therefrom.’” Dorantes, 331 S.W.3d at 379 (quoting State v.

Vasques, 221 S.W.3d 514, 521 (Tenn. 2007)). Under no circumstances may an appellate

court “substitute its inferences for those drawn by the trier of fact.” Id. In this case, the jury

simply drew different conclusions from the evidence than those advanced by the defendant.

The defendant’s challenges to the sufficiency of the evidence to support his convictions are

therefore denied.

III.

The defendant makes several arguments concerning his sentencing. As a preliminary

matter, the defendant argues that the trial court erred by conducting the sentencing hearing

with the defendant remaining in absentia. We conclude that the record provides sufficient

evidence to support the sentencing judge’s conclusion that the defendant willfully waived his

right to be present at his sentencing. The sentencing judge was permitted to take judicial

notice of the defendant’s absence from the sentencing proceedings. Tenn. Rule Evid. 201.

Also, because the sentencing judge was present and sitting on the bench earlier when the

defendant disappeared during his trial, he had the authority to take judicial notice of the

circumstances surrounding that disappearance, including the statements made on the record

on the defendant’s behalf by the defendant’s trial counsel. Under these circumstances, it was

not necessary for the trial court to hold an evidentiary hearing or take any additional evidence

or testimony before concluding that the defendant had willfully waived his right to be present

at his sentencing.

The defendant does not challenge the trial court’s imposition (pursuant to Tennessee’s

three strikes law, Tennessee Code Annotated section 40-35-120) of two concurrent sentences

of life without the possibility of parole for his convictions of attempted first degree murder

and especially aggravated kidnapping. The defendant argues that the trial court erred in

applying various enhancement factors when it sentenced him to a consecutive twenty years

for his aggravated robbery conviction, to be served concurrently with eight years for his

conviction for conspiracy to commit kidnapping. The burden of demonstrating that a

sentence is erroneous is placed upon the appealing party. State v. Carter, 254 S.W.3d 335,

344 (Tenn. 2008). This court’s review of a trial court’s sentence is de novo with a

presumption that the trial court’s determinations are correct. Id. This presumption “‘is

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conditioned upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances.’” Id. at 344-45 (quoting State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If, however, the trial court applies

inappropriate mitigating and/or enhancement factors or otherwise fails to follow the

Sentencing Act, the presumption of correctness fails” and “‘our review is simply de novo.’”

Id. at 345 (quoting State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004) (italicization

supplied)).

The defendant challenges three of the six enhancement factors applied by the trial

court in his sentencing for both conspiracy and aggravated robbery: that the defendant was

a leader of an offense involving two or more persons, see T.C.A. § 40-35-114(2); that the

defendant allowed the victim to be treated with exceptional cruelty, see T.C.A. § 40-35-

114(5); and that the defendant had no hesitation about committing a crime where the risk to

human life was high, see T.C.A. § 40-35-114(10). We believe that the trial court properly

applied all three of these three factors with respect to the defendant’s conspiracy conviction,

and two of these three factors with respect to the defendant’s aggravated robbery conviction.

The trial judge properly applied section 40-35-114 enhancement factors (2) and (5)

with respect to the sentences imposed for both convictions. The defendant’s challenge

concerning the application of these factors is based on his assertion that he was merely a

passive participant in the conspiracy and robbery. However, the defendant had a full and fair

opportunity to be heard at trial concerning his alleged lack of participation in these offenses,

and the jury did not credit his story. Neither did the trial judge. The record is replete with

evidence that would support a finding that the defendant was a leader with respect to these

offenses, including the victim’s testimony that he (1) instigated the drug deal, (2) secured the

victim’s participation, (3) enticed the victim to get into a vehicle containing a group of four

individuals who later worked together throughout the evening to commit the criminal acts

at issue, (4) was the one in original possession of the firearm used to commit several of the

offenses, and (5) passed the firearm used to commit the kidnapping, robbery, and attempted

murder to his co-conspirator Debo. The record is also replete with evidence that, as a leader

of the offense, the defendant allowed the victim to be treated with exceptional cruelty –

including the victim’s testimony that after Debo had fired his initial shot and the victim had

fallen to the ground, the defendant allowed him to continue to fire at her motionless body

until he ran out of ammunition. Thereafter, the defendant either directed or permitted the

group to drive off (narrowly avoiding the victim in the process), leaving the victim to bleed

to death alone at night in cold weather. Under these circumstances, we conclude that the trial

judge committed no error by finding that both enhancement factors (2) and (5) were present.

With respect to enhancement factor section 40-35-114(10) – that “[t]he defendant had

no hesitation about committing a crime when the risk to human life was high” – the

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defendant argues that this factor should not apply because the only individual whose life was

placed at risk by the defendant’s crimes was the victim, and factor (10) should not be applied

“when the only person subject to being injured is the victim.” State v. Makoka, 885 S.W.2d

366, 373 (Tenn. Crim. App. 1994). However, this bright-line rule is no longer the governing

law.

In State v. Lavender, 967 S.W.2d 803, 807 (Tenn. 1998), our supreme court

established that application of enhancement factor (10), like other enhancement factors, must

be considered on a case-by-case basis. Rejecting “a rule that automatically would preclude

application of enhancement factor[] (10) . . . in every robbery case,”2 the supreme court

explained that a sentencing court should instead “consider the elements of the offense and

the evidence adduced at the trial and sentencing hearing.” Id. “If the facts which establish

the elements of the offense charged also establish the enhancement factor, then the

enhancement factor may not be used.” Id. “A court must, therefore, look to the specific facts

and circumstances surrounding a defendant’s crime to determine whether a particular

enhancement factor is applicable.” State v. Lewis, 44 S.W.3d 501, 506 (Tenn. 2001).

Under this test, it is clear that the trial court did not err in applying enhancement factor

(10) with respect to the defendant’s conspiracy conviction. As we have discussed more fully

during our consideration of the defendant’s challenge to the sufficiency of the evidence,

conspiracy is an inchoate crime whose primary element is the mere formation of an

agreement between persons to commit a crime, accompanied by the requisite mens rea. See

generally T.C.A. § 39-12-103. Considering the circumstances of this particular conspiracy,

the facts necessary to establish the defendant’s agreement to commit the kidnapping did not

necessarily involve a high risk to this victim’s life. It was not the defendant’s act of agreeing

with the group to drive the victim around the Murfreesboro area (and then on to a remote

location), forcibly and against her will, which posed a high risk to the victim’s life. It was

the defendant’s decision to permit the victim to be shot, and for that shooting to continue

until all ammunition was exhausted, that substantially increased her risk of death. These

facts are entirely separate and apart from those necessary to establish that the defendant

agreed with one or more other persons to kidnap the victim. Consequently, it was not error

for the trial judge to apply this enhancement factor to the defendant’s conspiracy sentence.

The trial court’s use of factor (10) to enhance the defendant’s sentence for aggravated

robbery poses a different situation. As discussed above, our Supreme Court held in Lavender

that the applicability of enhancement factor (10) should be decided on a case-by-case basis,

and may be applied to robbery convictions where the person injured was the victim so long

2

All of this court’s existing case law to the contrary was overruled. See Lavender, 967 S.W.2d at

807 n.4.

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as the evidentiary facts used to establish the elements of the offense are not the same

evidentiary facts used to establish the presence of factor (10). However, in State v. Reid, 91

S.W.3d 247, 288, 312 (2002), that same court affirmed a decision by this court stating that

enhancement factor (10) may not be used to enhance sentences for especially aggravated

robbery because having “no hesitation about committing a crime when the risk to human life

was high” was an inherent element of that offense. The crime of aggravated robbery falls

in between the extremes of robbery and especially aggravated robbery, and neither this court

nor our supreme court has spoken definitively on the issue of whether enhancement factor

(10) may be used to enhance a sentence for a conviction of aggravated robbery where the

only life that was placed at risk was that of the victim.

The weight of the unpublished authority from this court on the issue appears to

support the view that, as a bright-line rule, enhancement factor (10) should not be applied to

aggravated robbery convictions where the only human life at risk was that of the victim,

reasoning that “this factor is inherent in the crime of aggravated robbery.” State v. Deborah

N. Cotter, No. E2009-01849-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 115 at *18 (Tenn.

Crim. App. Feb. 15, 2011). We need not, however, diverge further from the supreme court’s

instruction in Lavender and Lewis that the applicability of enhancement factor (10) should

be determined on a case-by-case basis in order to resolve the case at bar. Whether

enhancement factor (10) may be applied in some cases during sentencing for an aggravated

robbery conviction when the only person whose life was placed at risk was the victim, the

fundamental principle remains the same: “Enhancement factors are not intended to allow

sentence adjustments based on the general nature of the offense.” State v. Kissinger, 922

S.W.2d 482, 488 (Tenn. 1996). Or as this court has explained, “in general, factor (10)

applies only where the facts that establish that the defendant created a high risk to human life

also demonstrate a greater culpability than that incident to the offense underlying the

enhancement.” State v. Lance Sandifer, No. M2008-02849-CCA-R3-CD, 2010 Tenn. Crim.

App. LEXIS 1075 *54 (Tenn. Crim. App. Dec. 21, 2010).

Examining the evidentiary facts of this particular case, we cannot determine with any

degree of certainty whether the facts that establish the enhancement factor are separate from

the facts that establish an element of the defendant’s aggravated robbery conviction.

Although this defendant was charged with especially aggravated robbery, the jury found him

guilty only of the lesser included offense of aggravated robbery. A robbery is considered

aggravated if “[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” or “where the

victim suffers serious bodily injury.” T.C.A. § 39-13-402. On the facts of this case, we do

not know which of these two elements the jury used to find the defendant guilty; evidence

presented at trial would support a jury’s finding in favor of either element. If the jury relied

on either the defendant or Debo’s display of a deadly weapon to establish the aggravated

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robbery, then separate evidence would establish the elements of the offense and the trial

judge’s finding of enhancement factor (10), which was based on the fact that the victim was

repeatedly shot. If, however, the jury found the defendant guilty based on the fact that the

victim suffered serious bodily injury, then the same evidentiary facts – Debo’s repeated

shooting of the victim – would have established both an element of the crime and the

application of the enhancement factor, and application of this factor not be permissible under

Lavender. Consequently, on the facts of this case, we cannot be entirely sure that the trial

judge’s application of enhancement factor (10) was permissible.

Assuming that the trial court misapplied this enhancement factor, this court would,

as a consequence, review the defendant’s aggravated robbery sentence de novo with no

presumption of correctness. See Carter, 254 S.W.3d at 345. However, after carefully

reviewing the record and the findings of the trial court de novo, we do not believe that a

remand to the trial court for re-sentencing is required, or that the defendant’s twenty-year

sentence should be reduced in any way. The trial court correctly found and applied numerous

other enhancement factors when it set the defendant’s sentence, and in light of those

enhancement factors and the particular facts of this case, we believe that the twenty year

sentence imposed for this aggravated robbery is fully consistent with the principles and

purposes of sentencing as set forth in the Sentencing Act. See id.; T.C.A. 40-35-210(d).

Finally, the defendant argues that the sentences imposed by the trial court for

conspiracy and aggravated robbery his convictions were “excessive” given his “passive

participation” in the crimes. As discussed above, conducting a de novo review of the

defendant’s sentence for aggravated robbery with no presumption of correctness has led us

to the conclusion that the twenty-year sentence imposed by the trial court was appropriate.

With respect to the defendant’s concurrent eight-year sentence for conspiracy, further review

leads us to conclude that the trial court considered all of the appropriate principles and laws

in setting this sentence and that this sentence was not “excessive.” Any weighing of

applicable mitigating and enhancing factors rests within the discretion of the trial court. See

Carter, 254 S.W.3d at 345. Trial courts are free to select any sentence within the applicable

range so long as the length of the sentence is “‘consistent with the purposes and principles

of the Sentencing Act.’” Id. at 343 (quoting T.C.A. § 40-35-210(d)). There is no dispute that

the sentence at issue was within the applicable legal range in light of the defendant’s offenses

and his offender range. Consequently, the defendant’s claim that his sentence for conspiracy

was excessive is denied.

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CONCLUSION

For the foregoing reasons, the judgments of the trial court are affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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