State of Tennessee v. Katia Lenee Harris a/k/a Fuzzy

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 24, 2007

STATE OF TENNESSEE v. KATIA LENEE HARRIS A/K/A FUZZY

Direct Appeal from the Circuit Court for Marshall County

No. 17290 Robert Crigler, Judge

No. M2006-02611-CCA-R3-CD - Filed November 16, 2007

The Defendant, Katia Lenee Harris a/k/a Fuzzy, pled guilty to one count of aggravated robbery. The

trial court sentenced her to ten years confinement based on the application of three enhancement

factors. On appeal, the Defendant contends the trial court erred when sentencing her. We conclude

the trial court erred in enhancing the Defendant’s sentence based on enhancement factors (1) and

(10). Thus, we modify the Defendant’s sentence to nine years.

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

Modified

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which J.C. MCLIN , J., joined.

JOSEPH M. TIPTON , P.J., filed a separate opinion, concurring in part and dissenting in part.

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the Appellant, Katia Lenee Harris a/k/a

Fuzzy.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

Cameron L. Hyder, Assistant Attorney General; Charles F. Crawford, District Attorney General;

Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts

The Defendant pled guilty to aggravated robbery, a Class B felony, after she and three friends

robbed a pizza delivery man on July 25, 2006. Two individuals, the Defendant and Fasonia Radley

a/k/a Rudy, were adults and were processed through Marshall County Circuit Court. They acted as

“lookouts” while two other individuals, both juveniles, waited behind a house to commit the robbery.

We refer to the juveniles by their initials, P.F. and J.R., as is custom in this Court.

P.F., Radley, and the Defendant decided to commit the robbery because, as the Defendant

stated, Radley “wanted some money for some drugs.” P.F. claimed he needed the money “so [he]

could go see his sick grandmother.” Radley said they decided to commit the robbery because the

Defendant’s “children needed some food.” It appears that P.F. was in possession of a gun, which

he planned to use in the robbery. Radley stated, P.F. “already had a pistol - it was black and an

automatic. I think it was a BB gun but I am not for sure. I don’t know where [P.F.] got the gun. The

whole time we were talking about it he kept saying, ‘I already have a gun.’” P.F. called the gun a

“toy gun.” Radley ultimately called Pizza Hut and ordered $60.03 worth of pizza, cheese sticks, hot

wings, and soda. Radley used another friend’s cell phone when ordering. She directed the pizza

man to a vacant house where they planned to wait.

When the pizza man arrived to make his delivery, the Defendant and Radley were waiting

for him at the end of the driveway. They told the victim to proceed to the back of the house to

retrieve his money and drop off the pizza; P.F. and the additional juvenile, J.R., were waiting for the

victim there. The Defendant served as a lookout at the driveway to make “sure nothing happened

or that any police showed up.” As the Defendant further explained in her statement to the police,

“I heard [an accomplice] say, ‘Just lay it down, man, just lay it down.’ I heard the pizza man say,

‘Just don’t hurt me.’” Minutes later, the pizza man hurried to his car and drove away “real fast.”

Five minutes later, the four met up again at a friend’s house. J.R. brought the pizza, while P.F.

arrived with the money. When the group left the friend’s house, they left one pizza for the children

who were there. P.F. then gave the Defendant three dollars for cigarettes.

At the sentencing hearing, Beth Flatt of the Tennessee Board of Probation and Parole testified

that the Defendant claimed she did not know a weapon would be used in the robbery. Flatt testified

that three of the individuals, including the Defendant, began the night by discussing how they could

obtain money. They somehow determined robbing the pizza delivery man would be the best option.

Flatt further testified that, although the Defendant claimed she wanted to return to her six children

if she were allowed to avoid jail, she was not actually responsible for any of her children at the time

of the crime. Flatt also described the Defendant’s employment at sporadic.

On cross-examination, Flatt testified that there was no evidence that the Defendant ever

possessed the gun. However, Flatt stated that there were statements by the other individuals

indicating that the Defendant was present when the group hatched the plan and when they discussed

the need for a gun.

The Defendant testified that she was twenty-four years old, with six children. She stated that,

prior to her arrest, she maintained custody of four of the six children. The Defendant stated that she

was involved in the initial discussion of the robbery. “At first I told them ‘no,’ and then, I was like,

‘well, yeah, why not? I will be the lookout.’” The Defendant stated that, when the pizza man

arrived, Radley escorted him around the house. She stated that she did not see the “BB gun” until

after the robbery. The Defendant testified she did not eat any of the food, and P.F. only gave her $3

for cigarettes. The Defendant next admitted she pled guilty to theft under $500 in Davidson County

in 2004. She stated she did not pay court costs because she did not have any money. The Defendant

stated, “I feel I could have been a better adult. I do have six kids. I could have thought before I did

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it, did anything wrong. I am sorry for doing it. I am sorry for ever being involved in it.”

On cross-examination, the Defendant stated she had not worked in the year prior to the

robbery. She stated she was being supported by a boyfriend and food stamps. She did not ask her

boyfriend to give her money to buy cigarettes because “being in that robbery was just something I

wanted to do.” The Defendant stated the group discussed the robbery for about an hour prior to

executing it. When asked how she thought P.F. and J.R. were going to obtain the money and food,

the Defendant responded, “I thought he was going to use a weapon he found behind the house. I

didn’t know a gun or a BB gun, toy gun was going to be involved.” She understood there would be

a weapon involved, but she did not know the weapon would be a gun.

The Defendant testified the previous conviction for theft under $500 stemmed from her friend

stealing clothes from a Nashville mall. The Defendant explained that the incident occurred in 2000,

but it was not disposed of until 2004. This was because the Defendant never returned to court after

being arrested. She was ultimately found in 2004 after a dispute where the police were called. The

Defendant further admitted that her children were in a nearby house during the robbery, and they

could have seen her had they looked out the window.

The trial court determined the Defendant was not eligible for probation under Tennessee

Code Annotated section 40-35-303. Additionally, the Defendant was not eligible for community

corrections under Tennessee Code Annotated section 40-36-106(e)(3). The trial court gave “some

benefit” to mitigating factor thirteen – the “catch-all” mitigating factor – because the Defendant

confessed to the crime.

In addressing enhancing factors, the trial court determined the Defendant had a previous

history of criminal convictions or criminal behavior – the Defendant was previously convicted of

theft under $500 and she confessed to using marijuana “once or twice.” The trial court also stated,

“I am going to consider this addendum about the juvenile,” but, because none of the acts committed

as a juvenile would constitute felonies if the Defendant was an adult, enhancement factor sixteen did

not apply. See T.C.A. § 40-35-116(16) (2006). However, the court stated, “I am going to place

some weight on that, on this addendum. It is lengthy.” The court considered this with regards to

enhancement factor one – a previous history of criminal convictions or criminal behavior. See

T.C.A. § 40-35-114(1) (2006). The trial court also enhanced the Defendant’s sentence because she

had no hesitation about committing a crime where the risk to human life was high. See T.C.A. § 40-

35-114(10) (2006). Finally, the trial court enhanced the Defendant’s sentence based on the fact that

it was committed to “gratify the defendant’s desire for pleasure or excitement,” because she stated,

“This was just something I wanted to do.” T.C.A. § 40-35-114(7). The trial court determined ten

years would be an appropriate sentence.

II. Analysis

On appeal, the Defendant alleges the trial court erred in sentencing her to ten years

confinement. When a defendant challenges the length, range or manner of service of a sentence, this

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Court must conduct a de novo review on the record with a presumption that “the determinations

made by the court from which the appeal is taken are correct.” T.C.A. § 40-35-401(d) (2006). As

the Sentencing Commission Comments to this section note, the burden is now on the appealing party

to show that the sentencing is improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts. This

means that if the trial court followed the statutory sentencing procedure, made findings of facts

which are adequately supported in the record and gave due consideration to the factors and principles

that are relevant to sentencing under the 1989 Sentencing Act, T.C.A. § 40-35-103 (2006), we may

not disturb the sentence even if a different result was preferred. State v. Ross, 49 S.W.3d 833, 847

(Tenn. 2001). The presumption does not apply to the legal conclusions reached by the trial court in

sentencing a defendant or to the determinations made by the trial court which are predicated upon

uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler,

900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim.

App. 1994). Because the trial court erroneously applied two of the three enhancement factors it

considered, we will review the sentence de novo without a presumption of correctness.

In conducting a de novo review of a sentence, we must consider: (1) any evidence received

at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing, (4)

the arguments of counsel relative to sentencing alternatives, (5) the nature and characteristics of the

offense, (6) any mitigating or enhancement factors, (7) any statements made by the defendant on his

or her own behalf and (8) the defendant’s potential or lack of potential for rehabilitation or treatment.

See T.C.A. § 40-35-210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

Specifically, the Defendant alleges the trial court erred in enhancing the Defendant’s sentence

based on juvenile offenses that would not constitute felonies if committed as an adult, based on the

Defendant having committed the robbery to gratify the Defendant’s desire for pleasure or excitement,

and because there was no risk to life other than the victim. See T.C.A. § 40-35-114(1), (7), & (10)

(2006).

Enhancement factor (1) states, “The Defendant has a previous history of criminal convictions

or criminal behavior, in addition to those necessary to establish the appropriate range.” The trial

court took into account three things in enhancing based on this factor: (1) the Defendant’s conviction

of theft under $500; (2) the Defendant’s admitted use of marijuana; and (3) the Defendant’s juvenile

record. The Defendant addresses the trial court’s use of her juvenile record in her argument.

In State v. Jackson, the Tennessee Supreme Court considered whether enhancement factors

(1) and (20) were mutually exclusive. 60 S.W.3d 738, 742 (2001). The Court stated, “Because the

legislature is not presumed to have passed or enacted useless legislation, factor (1) must necessarily

apply only to adult criminal conduct, and factor (20) [as amended, factor (16)] must apply

exclusively to juvenile adjudications of delinquent acts.” Id. (internal citation omitted). Because

enhancement factor (1) only applies to adult conduct, the trial court impermissibly considered the

Defendant’s juvenile record with respect to this factor.

It may be possible to consider the Defendant’s juvenile record under the aforementioned

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enhancement factor (16) which states, “The defendant was adjudicated to have committed a

delinquent act or acts as a juvenile that would constitute a felony if committed by an adult.” T.C.A.

§ 40-35-114(16) (2006). However, our review of the Defendant’s juvenile record shows that none

of the nineteen counts would have resulted in a felony had she been an adult. Thus, the trial court

improperly considered the Defendant’s juvenile record in enhancing her sentence.

Next, the Defendant challenges the trial court’s application of enhancement factor (7): “The

offense involved a victim and was committed to gratify the defendant’s desire for pleasure and

excitement.” T.C.A. § 40-35-114(7) (2006). The Defendant cites State v. Anthony T. Jones for the

following proposition:

In this case, while there was evidence that Appellant and the others committed the

aggravated robbery in order to use the proceeds to obtain pleasure by purchasing and

then consuming marijuana, there was absolutely no evidence that Appellant

participated in the aggravated robbery in order to obtain pleasure or excitement from

the robbery itself.

No. 03C01-9807-CR-00245, 1999 WL 538389, at *6 (Tenn. Crim. App., at Knoxville, July 14,

1999), no Tenn. S. Ct. R. 11 application filed. We find the Jones case distinguishable in that the

Defendant testified that, “being in that robbery was just something I wanted to do.” Because the

Defendant’s statement expresses desire to commit the robbery, not simply reap the rewards of the

robbery, it was not error to apply this enhancement factor.

Next, the Defendant alleges error in the trial court’s application of enhancement factor (10),

“The defendant had no hesitation about committing a crime when the risk to human life was high.”

At the sentencing hearing, the State argued in support of this factor, focusing on the Defendant’s lack

of hesitation. Even assuming the Defendant lacked hesitation in committing this offense, we find

that fact somewhat beside the point. This enhancement factor is inherent in the crime of aggravated

robbery, unless the crime put individuals in addition to the victim at risk. State v. King, 905 S.W.2d

207, 213 (Tenn. Crim. App. 1995) (“This Court has previously held that absent any proof

establishing risk to life other then [sic] the victim’s . . . [factor (10) is an] essential element[ ] of

[aggravated robbery] and, therefore, inappropriate.”) (quotations omitted), overruled on other

grounds by State v. Williams, 997 S.W.2d 101 (Tenn. 1998); State v. Hicks, 868 S.W.2d 729, 732

(Tenn. Crim. App. 1993), overruled on other grounds by State v. Williams, 997 S.W.2d 101 (Tenn.

1998).

There is evidence in the record that at least one individual was outside his house when the

victim arrived to deliver his pizza. However, the victim was escorted behind the vacant house,

where he was robbed. There is no evidence anyone besides the victim saw the robbery or was

threatened by the robbery. Thus, we conclude the trial court inappropriately applied this

enhancement factor.

In support of the trial court’s decision to enhance the Defendant’s sentence, the State

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presented evidence the Defendant had one conviction for theft under $500. The Defendant admitted

she used marijuana and, although not used in support of enhancement, the Defendant also admitted

she failed to appear in response to the theft charge for four years. She was ultimately arrested after

a verbal altercation where the police were called. All of these support enhancement factor (1) –

criminal convictions or criminal behavior. Additionally, as the trial court found, the Defendant

committed this crime for pleasure or excitement.

The trial court determined that mitigating factor (13) applied – the “catch-all” mitigating

factor – because the Defendant confessed to committing the crime. We would set the Defendant’s

sentence at ten years, but for the applicable mitigating factor. Like the trial court, we find that factor

applies, and we give it slight weight, thus reducing the Defendant’s sentence from ten years to nine

years. See T.C.A. § 40-35-210(c) - (e) (2006).

III. Conclusion

In accordance with the foregoing authorities and reasoning, we affirm as modified the

judgment of the trial court. This case is remanded to the trial court for a judgment to be entered

reflecting the Defendant is sentenced to nine years of incarceration, as a Range I offender.

_______________________________

ROBERT W. WEDEMEYER, JUDGE

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