State of Tennessee v. Anton Mayhew and Travis Brown

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 2, 2010

STATE OF TENNESSEE v. ANTON MAYHEW AND TRAVIS BROWN

Direct Appeal from the Criminal Court for Shelby County

No. 07-00039 W. Mark Ward, Judge

No. W2009-02184-CCA-R3-CD - Filed July 8, 2011

Defendant Anton Mayhew was convicted of two counts of aggravated robbery, a Class B

felony, and was sentenced as a Range I, standard offender to a pair of concurrent twelve-year

terms. Defendant Travis Brown was convicted of two counts of aggravated robbery, a Class

B felony, and one count of aggravated rape, a Class A felony. He was sentenced as a Range

I, standard offender to concurrent twelve-year terms for the aggravated robberies and to a

concurrent twenty-five-year term as a violent offender for the aggravated rape, for a total

effective sentence of twenty-five years. On appeal, Defendant Mayhew claims that the trial

court erred in admitting a portion of one witness’s testimony and that the evidence is

insufficient to support his convictions. Defendant Brown claims that the evidence is

insufficient to support his convictions and that the trial court erred by denying his request for

a jury instruction relating to missing evidence, by requiring him to stand next to an enlarged

photograph in open court, and by sentencing him to the maximum sentence. After careful

review of the record and the arguments raised by both defendants and the State, we affirm

the judgments of the trial court in all respects.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,

P.J., and J ERRY L. S MITH, J., joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, Anton Mayhew.

Patricia A. Woods, Memphis, Tennessee, for the appellant, Travis Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Chris Lareau, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

According to trial testimony given by the two victims and law enforcement officials

in this case, Victim One (a male international student) was returning home from work during

the early morning hours of August 22, 2002, to an apartment he shared with Victim Two (a

female international student). After Victim One parked his car behind his building and began

walking to the apartment, he was approached by the defendants, and one of the men held a

gun to his head and told him to hand over all his money. After he did so, the defendants

forced Victim One to lead them to his apartment, where they discovered Victim Two lying

asleep in her bed. Defendant Mayhew hit Victim One in the eye with his gun and forced him

into the bathroom while he ransacked the apartment. While Victim One watched from the

bathroom, Defendant Brown forced Victim Two to perform an oral sex act on him. At the

conclusion, Victim Two spit some of Defendant Brown’s semen onto the bed and was forced

to wipe his remaining semen off with her hand. The defendants then forced Victim Two into

the bedroom closet and left, taking approximately six hundred dollars from the victims.

Victim One left the bathroom, assisted Victim Two, and telephoned 9-1-1. A police

investigation was begun, and Victim Two was transported to the Memphis Sexual Assault

research center, where a nurse took a DNA swab from her hand and noted that the victim had

sustained an injury to her lip. Meanwhile, the police processed the crime scene. During this

process, Victim Two’s bed linens may have been collected and stored in the police property

room. The following day, both victims provided a description of the perpetrators.

Soon thereafter, Victim Two was shown several photo lineups and erroneously

identified an individual named James McMoore as one of her attackers. Mr. McMoore was

arrested and charged with the attack, but these charges were later dismissed after neither

victim identified him as a perpetrator at his preliminary hearing. The case went cold.

Approximately four years later, then-Detective Charles Shettlesworth, an officer in

the Memphis Police Department who had been assigned the cold case, was informed by the

Tennessee Bureau of Investigation (“TBI”) that its testing database had matched the DNA

sample taken from Victim Two’s hand with Defendant Brown. Some weeks later,

investigators obtained a saliva sample from Defendant Brown that confirmed the DNA

database match. The DNA match also led police to a second suspect, Defendant Mayhew,

because these two individuals had been caught and convicted for committing a pair of

aggravated robberies and an aggravated assault together a few days after the robberies in

question and the rape of Victim Two. This suggested to police that the crimes committed on

August 22, 2002, may have been the first stages of a larger crime spree committed by the

defendants.

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Both victims were shown additional photo lineups containing the defendants. Victim

Two identified both defendants from these lineups as her attackers on the night in question.

Victim One also identified Defendant Mayhew as one of the attackers with 90% certainty.

On January 9, 2007, the Shelby County Grand Jury issued an indictment charging the

defendants with two counts of aggravated robbery and one count of aggravated burglary. In

addition, the jury charged Defendant Brown with one count of aggravated rape. The trial

court later dismissed the aggravated burglary charges against both defendants on statute of

limitations grounds. Both defendants were tried before a jury from August 17-20, 2009.

Prior to trial, Defendant Mayhew filed a motion in limine to prevent any witnesses

from referencing the house robberies and other crimes he committed with Defendant Brown.

The State sought to introduce evidence of the defendants’ joint arrests in order to buttress the

identification of the eyewitnesses. After a pretrial hearing, the trial court granted the

defense’s motion to exclude any evidence of the defendants’ arrests and convictions.

However, the trial court did permit Detective Shettlesworth to testify that, before preparing

the photo lineups containing Defendant Mayhew’s image that were later shown to the

victims, Shettlesworth “was able to establish with conclusive evidence” that the two

defendants were in contact with each other during the time period surrounding the crime.

Defendant Brown also filed a pretrial motion seeking to suppress the State’s DNA

evidence after it was discovered that Victim Two’s bed linens (presumably containing a stain

from the semen that Victim Two testified she spit out after performing the sex act), which

may have been taken into evidence years before, could not be located. The State opposed the

motion, eventually explaining in testimony given by Detective Shettlesworth that: (1) the

DNA sample that had been matched to Defendant Brown had been taken not from the bed

linens but from the victims’ hand, (2) once a DNA match was found, it was the policy of the

TBI not to perform DNA testing on any other evidence; and (3) there was no reason to

believe that any semen that may have been contained on the victim’s bed linens had ever

been tested. The trial court ultimately denied the motion to suppress and refused Defendant

Brown’s further request to give the jury an instruction pertaining to missing exculpatory

evidence. The trial court reasoned that there was no reason to believe that the bed linens had

been intentionally destroyed. Moreover, the trial court concluded that there was no reason

to believe that any DNA that might have existed on the linens would prove to be exculpatory

– even assuming that additional DNA was discovered on the bed linens and this additional

DNA did not match Defendant Brown, it would not call into question the validity or accuracy

of the existing DNA match that had been made from the DNA swab taken from Victim

Two’s hand.

At trial, the State presented the testimony of both victims as described above, and both

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victims identified the defendants as their attackers. Prior to being identified by Victim Two

and over his objection, the State had Defendant Brown stand next to an enlarged photo of Mr.

James McMoore, presumably to show the physical similarities between the two men for

purposes of helping to explain Victim Two’s earlier misidentification of Mr. McMoore as

her rapist. In addition to the testimony of the victims and Detective Shettlesworth, the State

also presented during its case-in-chief the testimony of Officer Chavis Davis of the Memphis

Police Department, who testified that he responded to and secured the initial crime scene,

interviewed the witnesses, and made an initial crime report; Detective David Royal, who

testified that he examined the crime scene and found it to match the victims’ reports of what

had transpired; Nurse Margaret Aiken, who testified that she treated Victim Two after the

rape, administered a rape kit, and took DNA swabs of her hand and mouth; Officer Shan

Tracy, who testified that he photographed the crime scene and processed and recovered the

evidence; Officer Hyun Kim, who collected the DNA evidence from Nurse Aiken, sent it to

TBI for analysis, and secured it after testing was complete; Officer James Hill, who testified

that he examined a latent fingerprint from the crime scene but was unable to match it to either

defendant; Ms. Franchesca Sanders of the TBI, who testified that she received the DNA

evidence sent by the Memphis Police Department and secured it in TBI’s vault; and Dr.

Qadriyyah Debnam of the TBI’s Memphis Crime lab, who testified that he compared the

DNA swab taken from Victim Two’s hand and found that it did not match a sample taken

from Mr. James McMoore but did match a saliva swab from Defendant Brown to a degree

of probability that exceeded the world’s population.

The defendants presented a single witness in their defense, Dr. Jeffrey Neuschatz, an

associate psychology professor at the University of Alabama in Huntsville. Dr. Neuschatz

testified that he had conducted numerous studies in the area of eyewitness identification and

had discovered numerous problems associated with it, such as source confusion, difficulties

in cross-racial identification, errors that may occur when eyewitnesses are given multiple

identification chances, and the fact that stress may adversely affect eyewitness memory.

After his testimony, the defendants were advised of and waived their right to testify in their

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

64 (Tenn. 1999). The case was then submitted to the jury.

During deliberations on Thursday, August 20, 2009, the jury sent the trial judge a

question asking, “How did Detective Shettlesworth come to find Anton Mayhew and Travis

Brown were in touch with each other around the time of the crime?” The judge refused to

answer, stating, “I cannot answer that,” and directed the jury to continue its deliberations.

The jury returned soon thereafter and rendered a verdict of guilty on all counts. The trial

court approved the verdicts that same day.

At the sentencing hearing on September 10, 2009, neither defendant made a statement

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in mitigation. The trial court sentenced both defendants on their two aggravated robbery

convictions by starting at the bottom of the sentencing range for the Class B felonies. The

trial court then found an enhancement factor based on the defendants’ lengthy criminal

histories (including five or six felonies each) and sentenced each defendant to the maximum

term of twelve years. With respect to Mr. Brown’s rape conviction, the trial court started at

the midpoint of the range for the Class A felony, again found the defendant’s criminal history

to be an enhancing factor, and imposed the maximum sentence of twenty-five years.

However, in light of defendants’ age (nineteen years) at the time they committed the

offenses, the trial court permitted all sentences to run concurrently, leaving Defendant

Mayhew with an effective sentence of twelve years and Defendant Brown with an effective

sentence of twenty-five years.

The defendants filed timely motions for a new trial, which were denied on October

9, 2009. These appeals followed.

I.

Both defendants challenge, in somewhat cursory fashion, the sufficiency of the

evidence to support their convictions. “When 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.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); see also

Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). Great weight is

given to the result reached by the jury in a criminal trial; matters such as the credibility of

witnesses, the weight given their testimony, and the proper resolution of any conflicts in the

evidence are ordinarily left in their care. Dorantes, 331 S.W.3d at 379. Consequently, “on

appeal, the State must be afforded the strongest legitimate view of the evidence and all

reasonable inferences that may be drawn therefrom.” Id. (internal quotation omitted). In

essence, a jury’s verdict of guilt strips the defendant of the presumption of innocence and

replaces it with a presumption of guilt that the defendant must strive to overcome on appeal.

Id.

In this case, the essential elements at issue are those of the crimes of aggravated

robbery and aggravated rape. Robbery is defined as “the intentional or knowing theft of

property from the person of another by violence or putting the person in fear.” T.C.A. § 39-

13-401(a) (2011). A robbery is aggravated if it is “[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 if “the victim suffers serious bodily injury.” T.C.A. § 39-13-402.

“Aggravated Rape” is defined in pertinent part under Tennessee law as the “unlawful sexual

penetration of the victim by the defendant accompanied by . . . force or coercion and the

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defendant is armed with a weapon.” T.C.A. § 39-13-502 (a)(1). “Sexual penetration” is

defined to include “fellatio.” T.C.A. § 39-13-501(7).

With these standards and definitions in mind, we turn to the defendants’ arguments

that the evidence is insufficient to sustain their convictions on all charges. In this regard,

Defendant Mayhew observes that there was no physical evidence, such as DNA evidence or

fingerprints, linking him to the crime scene. Defendant Mayhew also points out difficulties

with the prosecution’s eyewitness identifications, including the amount of time that passed

between the crime and the identifications, Victim Two’s earlier misidentification of James

McMoore as one perpetrator, and the fact that Victim One was only 90% confident in his

initial photo identification of Defendant Mayhew as one of the perpetrators. Defendant

Brown argues that due to the inherent difficulties with eyewitness testimony, the State’s loss

of the Victim Two’s bed linens, and because of certain technical complaints regarding the

type of DNA testing that was done in his case, the trial court should have set aside the

defendants’ convictions in its capacity as the “thirteenth juror.”

The defendants’ complaints regarding eyewitness testimony, DNA testing, and lost

bed linens all go to the weight of the evidence and the credibility of the State’s case and its

witnesses. Weighing the evidence and evaluating the credibility of witnesses are

quintessential jury issues and ones which we will not disturb on appeal. See Dorantes, 331

S.W.3d at 379. For purposes of resolving the defendants’ sufficiency of the evidence claims,

it suffices that the defendants were identified at trial as the perpetrators by two eyewitnesses.

Defendant Brown’s identification was additionally supported by DNA evidence sufficient

to exclude the remainder of the population of the planet. This evidence is amply sufficient

for a reasonable jury to conclude that the defendants were, in fact the perpetrators of the

crimes at issue.

II.

Defendant Mayhew argues that the trial court erred in allowing Detective

Shettlesworth to testify about the defendants’ association with one another around the time

of the crime, claiming that this testimony amounted to impermissible evidence of prior bad

acts under Tennessee Rule of Evidence 404(b) and was unduly prejudicial under Tennessee

Rule of Evidence 403. We disagree.

The admission of evidence at trial is entrusted to the broad discretion of the trial court

and, as such, a trial court’s ruling on the admission of evidence may only be disturbed upon

a showing of an abuse of that discretion. State v. Robinson, 146 S.W.3d 469, 490 (Tenn.

2004) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)). A trial court’s exercise

of discretion will not be reversed unless the court “applied an incorrect legal standard, or

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reached a decision which is against logic or reasoning that caused an injustice to the party

complaining.” Id. (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

The general rule is that all relevant evidence is admissible unless a particular

constitutional provision, statute, or rule excludes it. Tenn. R. Evid. 402. For example,

relevant evidence may be excluded if “its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issue, or misleading to the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Tenn. R. Evid. 403. Evidence of a defendant’s prior bad acts may also be

inadmissible under Rule 404(b), which states that “[e]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in conformity

with the character trait.” Tenn. R. Evid. 404(b). Such evidence may, however, be admissible

for other purposes, and, when the prosecution seeks to introduce such evidence, a trial court

should, inter alia, “hold a hearing outside the jury’s presence” and “determine that a material

issue exists other than conduct conforming with a character trait” before admitting the

evidence. Id.

In the case at bar, when the prosecution sought to introduce evidence of the

defendants’ prior convictions, the trial court followed proper Rule 404 procedure. At a pair

of pretrial hearings, the court heard lengthy arguments from both sides. The prosecution

urged that admission of the defendants’ prior arrests was necessary not to show that they

were habitual robbers who acted in conformity with that character trait on the night in

question, but to show that the two individuals knew and associated with each other around

the time of the crimes for purposes of bolstering the credibility of the initial photo

identification of Defendant Mayhew as Defendant Brown’s accomplice. After hearing the

arguments and making many of the findings necessary to admit such evidence under Rule

404(b), the trial court eventually ruled against the prosecution and barred any discussion of

the defendants’ prior arrests and convictions out of concerns over possible prejudice to the

defendants.

In essence, therefore, the defense prevailed on this issue. However, because the

existence of a prior relationship between the defendants was “highly relevant” to the issue

of identity, the trial court did permit Detective Shettlesworth to testify that he had determined

by “conclusive evidence” that Defendant Mayhew and Defendant Brown were in close

association with each other during the time period surrounding the offenses. We do not

believe that the trial court abused its discretion by permitting this testimony, which we

believe prudently balanced the prosecution’s interest in bolstering the eyewitness

identifications with the defendants’ right not to be convicted based on character evidence.

The testimony that was admitted made no reference to the fact that either defendant had ever

committed prior crimes. While we recognize that it might be possible under different

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circumstances for a State’s witness (like Detective Shettlesworth) to convey that a particular

defendant has been previously arrested (or has committed some other similar bad act) to a

jury without using those precise words, we do not confront such a case today. The testimony

given by this particular witness was not tantamount to a backdoor attempt to circumvent the

strictures of Rule 404(b); the mere fact that two individuals are known to be in close

association with one another – even when attested to by a police officer – does not

necessarily imply that they have been convicted (or even suspected) of prior crimes.

Our broad conclusion is supported in this instance by the conduct of the jury, which

during its deliberations sent the judge a note asking “[h]ow did Detective Shettlesworth come

to find Anton Mayhew and Travis Brown were in touch with each other around the time of

the crime?” Posing this question would not have been necessary if the jury had somehow

gleaned that through use of the word “association,” the witness somehow meant to convey

“arrested together for prior robberies.” The trial court properly declined to answer the jury’s

question. We can find nothing in our review of the trial court’s efforts in this area that

suggests even the slightest error, much less an abuse of discretion.

III.

Defendant Brown claims that the trial court erred by denying his request for a lost

evidence instruction concerning certain bed linens that may have been taken from the

victims’ apartment during the initial police investigation, but which could not be located

years later in preparation for trial. We can discern no merit in this claim.

“A defendant has a constitutional right to a complete and correct charge of the law,

so that each issue of fact raised by the evidence will be submitted to the jury on proper

instructions.” Dorantes, 331 S.W.3d at 390. Special jury instructions may be given “to

supply an omission or correct a mistake made in the general charge, to present a material

question not treated in the general charge, or to limit, extend, eliminate, or more accurately

define a proposition already submitted to the jury.” State v. Cozart, 54 S.W.3d 242, 245

(Tenn. 2001). A trial court’s “refusal to grant a special request for an instruction is error only

when the general charge fails to fully and fairly provide the applicable law, considering the

instructions in their entirety and reading them as a whole rather than in isolation.” Dorantes,

331 S.W. at 390 (citing State v. Hanson, 279 S.W.3d 265, 280 (Tenn. 2009)).

With respect to missing exculpatory evidence, the due process clause of the Tennessee

Constitution provides even greater protection to defendants than that afforded by the U.S.

Constitution. State v. Ferguson, 2 S.W.3d 912, 914 (Tenn. 1999). In Tennessee, when the

State loses or destroys allegedly exculpatory evidence, trial courts should use a two-step

process to discern an answer to the overarching question of “[w]hether a trial, conducted

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without the [missing] evidence, would be fundamentally fair?” Id. First, the trial court must

ascertain “whether the State had a duty to preserve the evidence.” Id. at 917. The State has

such a duty if the evidence “might be expected to play a significant role in the suspect’s

defense” because it “possess[es] an [apparent] exculpatory value” and is “of such a nature

that the defendant would be unable to obtain comparable evidence by other reasonably

available means.” Id. If the missing evidence meets this standard of constitutional

materiality and the State has failed in its duty to preserve it, then the trial court must

determine the consequences of the breach, bearing in mind the degree of negligence

involved, the significance of the destroyed evidence in light available substitute evidence,

and the sufficiency of other evidence used at trial to support the conviction. Id. Depending

on the particular circumstances, a judge may dismiss the case, take no action, provide a

“missing evidence” instruction, or “craft such [other] orders as may be appropriate to protect

the defendant’s fair trial rights.” Id.

After reviewing the record, we believe that the jury instructions given by the trial

court correctly and fairly informed the jury regarding the applicable law and that the trial

court’s decision declining to give the jury a special “missing evidence” instruction was not

in error. We are not entirely convinced that the State was under any duty to preserve this

evidence, as the exculpatory nature of the victim’s bed linens in this case was questionable

at the very least. The State’s witnesses testified that a DNA swab was performed on the

victim’s hand following the rape and that an expert matched this swab to Defendant Brown’s

DNA with a high degree of certainty. Even if the victim’s bed linens had also contained a

testable semen stain and even if further DNA testing revealed that this semen came from a

different donor, it would not exonerate the defendant because it would not call into question

the validity of the DNA test performed using the sample from the victim’s hand.

Consequently, it is far from clear that the bed linens “possess[ed] an exculpatory value that

was apparent before the evidence was [lost],” as required by Ferguson, in order to trigger the

State’s duty to preserve evidence.

However, even assuming that the bed linens might have had some potential

exculpatory value that would have been evident to police during the early stages of the

investigation, meaning that the State had a duty to preserve them, the loss of this evidence

did not render the defendant’s trial fundamentally unfair. There was no evidence that the

State intentionally destroyed or misplaced the bed linens or did so as a result of gross

negligence. Several years passed between the commission of this crime and the development

of the Defendant Brown as a suspect. Therefore, the State’s degree of culpability with

respect to the loss of the bed linens is slight. Determining whether comparable substitute

exculpatory evidence was readily available is difficult to assess in this case because the

manner in which the missing evidence might have proven to be exculpatory has been so ill-

defined. However, it is clear in analyzing the third Ferguson factor that the remaining

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evidence used at trial to support the defendant’s conviction was more than sufficient.

Defendant Brown was identified as the perpetrator by the testimony of two eyewitnesses and

by DNA testing sufficient to exclude the remaining population of the planet. Under the

totality of the circumstances, we have little difficulty concluding that Defendant Brown

“received a fundamentally fair trial and that he experienced no measurable disadvantage

because of the unavailability of the [missing] evidence.” Ferguson, 2 S.W.3d at 918.

IV.

We find no merit to Defendant Brown’s additional claim that the trial court erred by

requiring him to stand next to an enlarged photograph of a prior suspect during his trial.

Whether or not to permit demonstrative evidence of this sort generally rests within the sound

discretion of the trial judge. E.g., Hughes v. State, 148 S.W. 543, 551 (Tenn. 1912)

(“[Demonstrative] evidence is, of course, largely in the discretion of the trial judge, who may

in a proper case refuse to permit his court room to be littered with cumbrous structures that

should be represented by maps, diagrams, or photographs.”); State v. Underwood, 669

S.W.2d 700, 704 (Tenn. Crim App. 1994) (“[W]e see no reason why [demonstrative]

evidence is not admissible within the discretion and control of the trial judge.). “Like all

evidence, the demonstration must be relevant evidence, and its probative value must not be

substantially outweighed by the danger of unfair prejudice.” Lovin v. State, No.

E2009-00939-CCA-RM-PC, 2010 Tenn. Crim. App. LEXIS 935, at *29 (Tenn. Crim. App.

at Knoxville, Nov. 10, 2010).

Prior to being identified by Victim Two at trial, the trial court required Defendant

Brown to stand next to an enlarged photograph of Mr. James McMoore, the individual who

had been erroneously identified by Victim Two as one of the perpetrators years earlier. The

defense objected to the demonstration on grounds that it was not relevant and constituted

“unnecessary theatrics.” The trial court overruled the objection, and Defendant Brown now

complains that the demonstration was unduly prejudicial.

However, we can find no fault with the trial court’s decision. The demonstration was

relevant because the degree to which Defendant Brown bore a resemblance to the earlier

suspect could have a bearing on whether or not a jury might consider her earlier mistaken

identification to have been reasonable. If Defendant Brown bore no resemblance to Mr.

James McMoore, then her mistake would be less reasonable (and the credibility of her later

identification of Defendant Brown would be more suspect), whereas if the two bore a strong

resemblance, then a jury might have more confidence in her ability to remember and

successfully identify her attackers in subsequent photo lineups and in court. Defendant

Brown’s relevance objection at trial was based on his assertion that it served no purpose to

compare the appearance of Defendant Brown in the year 2009 to a picture of Mr. James

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McMoore in the year 2002. However, concerns stemming from the fact that Defendant

Brown’s appearance may have changed in the intervening years go to the weight that should

be given to the demonstrative evidence, not its relevance (and, by extension, its

admissibility).

Defendant Brown argues on appeal that the State could have accomplished the same

goal of bolstering Victim Two’s identification of the defendant by furnishing photos of both

the defendant and Mr. James McMoore to the jury after Victim Two identified Defendant

Brown as her attacker. However, the Tennessee Rules of Evidence do not require the State

to present demonstrative evidence in the manner preferred by the defendant. We can discern

no meaningful prejudicial impact on Defendant Brown’s case from his merely being ordered

to stand next to an enlarged photograph of a prior suspect. As relevant evidence that did not

cause undue prejudice to the defense, the trial court was well within its discretion to compel

the demonstration.

V.

Finally, Defendant Brown complains that the trial court erred by sentencing him to the

maximum prison term permissible for his range on each count (twenty-five years for the

aggravated rape and twelve years for each aggravated robbery), which reflected an increase

over the sentences requested by the State. Specifically, Defendant Brown claims the trial

court erred by refusing to find his youth at the time of the offense to be a mitigating factor,

thereby justifying sentences less than the maximum. However, after reviewing the record,

we conclude that the trial court’s decision to impose maximum sentences on Defendant

Brown is fully consistent with the purposes and principles of the Sentencing Act. “The

burden of demonstrating that a sentence is erroneous is [placed] upon the party appealing,”

State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008), and that burden has not been met in this

case.

Our review of a trial court’s sentencing decision is de novo, but we will presume that

the trial court’s determinations are correct if the record reflects that the trial court considered

the proper sentencing principles and all the relevant facts and circumstances. Id. at 344-45.

After a review of the record, we conclude that the trial court followed the sentencing act and

appropriately applied all of the sentencing factors. A “trial court is free to select any

sentence within [a defendant’s] applicable range so long as the length of the sentence is

‘consistent with the purposes and principles of [the Sentencing Act].’” Id. at 343 (citing T.

C.A. § 40-35-210(d) (2006) (emphasis added)).

In light of the facts of the crimes at issue, as well Defendant Brown’s extensive

criminal history (which the trial court found as an enhancing factor, and relied upon in its

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decision to impose maximum sentences), we can discern no fault with the trial court’s

decision to decline to view the offenses at issue as youthful indiscretions and to deny the

request to consider the defendant’s age to be a mitigating factor at his sentencing. At the

time of his sentencing, Defendant Brown had seven prior felony convictions and six prior

misdemeanor convictions. Although many of these offenses were committed subsequent to

the offenses committed in this case, trial courts may consider any criminal behavior (and any

resulting convictions) occurring prior to sentencing as “previous history of criminal

convictions or criminal behavior,” and use this behavior to enhance a defendant’s sentence

under the auspices of Tennessee Code Annotated section 40-35-114(1) (2011). See State v.

Jordan, 116 S.W.3d 8, 24 (Tenn. Crim. App. 2003).

Consequently, the trial court was free to conclude that Defendant Brown’s acts of

criminal misbehavior, including several crimes involving the use of a weapon, were not those

of a child lacking the ability to appreciate the consequences of his actions. The trial court

would also have been free to conclude that this criminal history fully justified the imposition

of maximum sentences, regardless of the presence of one or more mitigating factors.

Furthermore, we agree with the trial court’s observation that, based on his extensive criminal

history, Defendant Brown might well have qualified for consecutive sentencing on all counts,

had the trial court not chosen instead to reduce his total effective sentence for the criminal

acts at issue by bestowing the boon of concurrent sentencing.

CONCLUSION

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

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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