State of Tennessee v. Jermaine Hughey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 7, 2006

STATE OF TENNESSEE v. JERMAINE HUGHEY

Appeal from the Criminal Court for Shelby County

Nos. 03-00283, 03-00284 Joseph B. Dailey, Judge

No. W2004-01074-CCA-R3-CD - Filed July 18, 2006

The defendant, Jermaine Hughey, was convicted of four counts of aggravated robbery, a Class B

felony, and four counts of attempted aggravated robbery, a Class C felony. The trial court sentenced

the defendant as a Range I, standard offender to eleven years for each aggravated robbery conviction

and five years for each attempted aggravated robbery conviction. The trial court ordered (1) that in

Case No. 03-00283, the three attempted aggravated robbery sentences be served concurrently to each

other and consecutively to the aggravated robbery sentence, for a total sentence of sixteen years; (2)

that in Case No. 03-00284, the three aggravated robbery and one attempted robbery sentences be

served concurrently to each other, for a total sentence of eleven years; and (3) that the sentences in

Case No. 03-00284 be served consecutively to the sentences in Case No. 03-00283, for an effective

sentence of twenty-seven years in the Department of Correction. The defendant appeals claiming:

(1) that the evidence was insufficient to support the verdict, (2) that the trial court erred in allowing

the interpreter to participate in the trial, (3) that the trial court erred in allowing a witness’s testimony

and in not allowing the defendant to cross-examine witnesses about their immigrant status, (4) that

the prosecutor made improper comments about the defendant’s right to testify, (5) that the trial court

erred in its instructions to the jury on lesser included offenses, and (6) that the trial court erred in

sentencing. We affirm the judgments of the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA

MCGEE OGLE, J., joined.

Mark Albert Mesler, II, Memphis, Tennessee (on appeal), and Leslie Irwin Ballin, Memphis,

Tennessee (at trial), for the appellant, Jermaine Hughey.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Stephen Patrick Jones, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

This case relates to the defendant’s robbery of victims at an apartment complex on two

different occasions. A Shelby County Grand Jury indicted the defendant on the following counts:

Case No. 03-00283 - Robbery on August 9, 2002

Count Offense Victim1

1 Agg. Rob. - Weapon Tirado

2 Agg. Rob. - Fear Tirado

3 Agg. Rob. - Weapon J. Torres

4 Agg. Rob. - Fear J. Torres

5 Agg. Rob. - Weapon E. Torres

6 Agg. Rob. - Fear E. Torres

7 Attp. Agg. Rob. - Weapon Gutierrez

Case No. 03-00284 - Robbery on August 30, 2002

Count Offense Victim

1 Agg. Rob. - Weapon Villapando

2 Agg. Rob. - Fear Villapando

3 Agg. Rob. - Weapon Gutierrez

4 Agg. Rob. - Fear Gutierrez

5 Agg. Rob. - Weapon J. Torres

6 Agg. Rob. - Fear J. Torres

7 Agg. Rob. - Weapon E. Torres

8 Agg. Rob. - Fear E. Torres

At the trial, Sylvia Merediz worked as an interpreter for the witnesses who did not speak

English. Ms. Merediz translated for Elpidio Aaron Savin Torres, Jose Yahir Cerda Gutierrez, and

Jose Miguel Savin Torres.

Elpidio Aaron Savin Torres testified that he had lived in Memphis for three years and was

from Mexico but was not an American citizen. He said that in August 2002, he was the victim of

two robberies at his brother’s apartment. He said that on August 9, 2002, between 11:00 a.m. and

noon, he went to his brother’s apartment to ask him about finding work. He said that he was in the

bedroom with his brother, Jose Miguel Savin Torres, and that his sister-in-law, Maria Conception

Tirado, was in the bathroom or kitchen. He said that his brother-in-law, Jose Yahir Cerda Gutierrez,

was at the apartment and that Mr. Gutierrez told him he was going outside to smoke a cigarette. He

said he was standing up to go outside with Mr. Gutierrez when he heard Mr. Gutierrez say, “We are

f----- up. They want our money.”

1

In the indictments, the victims are referred to as Maria Tirado, Jose Savin, Eldidio [sic] Savin, Jose Cerda, and

Carlos Villapando. W e will refer to the victims by the names they stated when testifying: Maria Conception Tirado, Jose

Miguel Savin Torres, Elpidio Aaron Savin Torres, Jose Yahir Cerda Gutierrez, and Carlos Villapando.

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Elpidio Torres testified that a man with a small black gun told them to go inside and told his

sister-in-law to come into the room. He said the man told them to get on the ground because “I

believe he didn’t want us to see him.” He said that the man said, “Give me your wallet,” and that

he took out his wallet and showed the man it contained no money before giving the man ten dollars

from his pocket. He said the man also took his cell phone and was pointing the gun at him. He said

his sister-in-law spoke English and told the man they did not have any money because they were not

working at the time. He said the man told them he was leaving and was going to count to ten. He

said that as the man was counting and closing the door, his sister-in-law called the police. He said

he did not recognize the man who robbed him at the time of the robbery. He said he was able to get

a good look at the man inside the apartment and could see the man’s face. He said that the man

touched the door handle as he was leaving the apartment and that the police took fingerprints from

the door handle. He said his sister-in-law translated for him when the police arrived.

Elpidio Torres testified that he again saw the man who robbed him on August 30, 2002,

around 5:30 to 6:30 p.m., when the man robbed him a second time. He said that he and his brother

were outside his brother’s apartment talking to a neighbor about the previous robbery and that his

brother was washing his truck. He said that he saw two black men and that he said, “Oh, oh, here

they come again. They’re either going to rob us or they’re after us.” He said that he knew it was the

same man who had robbed him previously when he saw the man coming toward him and that he had

no doubt it was the same man. He said that the man he recognized had a gun and that the other man

did not have a weapon. He said the two men approached him, his brother, Mr. Gutierrez, and the

neighbor who had been asking about the previous robbery. He said the two men frisked them and

asked for their money. He said that he threw his wallet and that the robbers took seven or eight

dollars. He said the man with the gun pointed it at him while the other man went through his

pockets. He said he was fearful because “these things happen all the time. Sometimes they take your

money and they still kill you.” He said his sister-in-law was inside the apartment, and they told her

to call the police. He identified the defendant in the courtroom as the man who robbed him twice.

Elpidio Torres testified that he saw the defendant after the second robbery when he and Mr.

Gutierrez were in the parking lot of the apartment complex. He said that he saw the defendant walk

over to the park and that he told his brother and sister-in-law that he had seen the man who robbed

him twice. He said that a friend, Nacho, drove his brother and sister-in-law over to the park but that

he did not go with them. He said that he did not see the police make an arrest and that he was not

asked to identify anyone at the time. He said he gave a statement to the police and identified the

defendant from two photographs. He said an interpreter who worked at the police department

translated for him. He said he had no doubt the man he identified in the photograph, the defendant,

was the man who robbed him.

On cross-examination, Elpidio Torres acknowledged he had testified he “glanced” four times

at the defendant inside his brother’s apartment. He said he also watched the defendant out of the

corner of his eye. He said he saw the robber face-to-face when the robber was coming in but only

saw a profile of the robber when he was picking up their wallets. He acknowledged his sister-in-law

translated for him when the police asked him to describe the robber after the first robbery. He

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acknowledged he told his brother and sister-in-law the man who robbed them was in the park with

a cell phone and told them where to look.

Elpidio Torres acknowledged he went with his brother and sister-in-law to the police station

to look at some photographs on September 6, 2002. He said that he identified the photograph of the

defendant and that he was not present when his sister-in-law viewed the photographs and made an

identification. He said his sister-in-law had not gone over his statement with him. He acknowledged

that the day before he testified at the trial, he told his brother and sister-in-law that the defendant was

“free” and not in jail because he had seen the defendant walking in the hallway. He denied talking

to Mr. Gutierrez about identifying someone in court. He acknowledged the defendant was the only

black man sitting in the courtroom where the accused normally would sit.

On re-direct examination, Elpidio Torres testified that he met with the assistant district

attorney and Ms. Merediz, the interpreter, to discuss his testimony but that no one else was in the

room. He said he and Mr. Gutierrez had seen the defendant in the hallway the day before while there

was a break in the trial. He said that he recognized the defendant at the preliminary hearing and that

he identified the defendant because he recognized the defendant as the man who robbed him and not

because he was the man in the photograph he was shown.

Jose Yahir Cerda Gutierrez testified that he was from Mexico and had lived in Memphis for

three and one-half years. He said that on August 9, 2002, he was living in an apartment with Ms.

Tirado and Jose Torres, and Elpidio Torres was visiting. He said he went outside to smoke and saw

a black man come from behind a car. He said that he first saw the man from about five to six meters

away and that the man told him, “Give me your money,” in English. He said that he was bending

down and that the man pointed the gun at his head. He said he stood up, and the man reached into

his pockets and took one dollar. He demonstrated how the man pushed him inside with the gun

pointed at him. He said the man threw him onto the floor and asked for the other three victims’

wallets. He said the man checked the other victims for money but only took money and a cell phone

from Elpidio Torres. He said that he had never seen the robber before the robbery but that he saw

the robber’s face both inside and outside of the apartment.

Mr. Gutierrez testified that he saw the robber again when he was robbed a second time

outside his apartment. He said he, Jose Torres, Elpidio Torres, and a neighbor were outside the

apartment standing at the back of a truck. He said that he saw the defendant and another man come

from the front of the truck and that the defendant had a gun. He said he recognized the defendant

as the same man who had robbed him previously. He said the defendant pointed the gun at them

while the other man checked their pockets. He said they took twenty dollars from him and took

money from two of the other victims. He said that after they took the money, the two men walked

away behind the apartment complex.

Mr. Gutierrez testified that he saw the defendant three or four days after the second robbery

when the defendant walked in front of the car in which Mr. Gutierrez was riding. He said that the

defendant was with three other people and that he walked to the park near the apartment complex.

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He said he was approximately five to six meters away from the defendant and was surprised to see

him. He said that Elpidio Torres told Ms. Tirado and Jose Torres about seeing the defendant and that

he remained at the apartment while they went to see if it was the man who robbed them. He said he

did not see the police arrest the defendant and was not asked to identify him at the apartment

complex. He said that he gave a statement to the police at the police station and that an interpreter

who worked at the office translated for him. He said the police officers showed him a photograph

lineup with several pictures on one page and showed him an individual photograph. He said he was

able to identify the man who robbed him because he would never forget him. He identified the

defendant at the trial as the man who robbed him on both occasions. He said he was one “hundred

percent” sure the defendant was the man who robbed him twice.

On cross-examination, Mr. Gutierrez testified that he had never seen the defendant before

the first robbery. He said Elpidio Torres told Jose Torres and Ms. Tirado that they had seen the black

man who robbed them in the park but did not say anything else to describe him. He acknowledged

he identified the defendant’s photograph on September 6, 2002. He also acknowledged a police

officer showed him a six-photograph lineup on September 10, 2002, at his apartment. He

acknowledged he told the police officer he was not sure if the picture he selected was the second

robber from the second robbery. He acknowledged he identified the defendant at a previous hearing

but was unable to identify the other robber. He said he was one-hundred percent sure the defendant

was the man who robbed him.

Memphis Police Officer Patricia Turnmire testified that she worked for the crime-scene unit

and that on August 9, 2002, between 11:20 a.m. and noon, she went to the Waterstone Landing

Apartments to investigate a home invasion. She said she took photographs of the scene and

fingerprinted the doorknob but found no fingerprints.

Memphis Police Sergeant Joseph Pearlman testified that he investigated two robberies on

August 9 and 30, 2002, occurring at the same location. He said Ms. Tirado said she thought the

robber lived in the apartment complex because she thought she had seen him before. He said he later

received a telephone call from Ms. Tirado who said she had seen the man who robbed them. He said

that he told her to watch the man until the police could get there and that she called back to say the

police had arrested the man. He said they called the victims and asked them to come into the robbery

office to give statements. He said that a clerk in the robbery office spoke Spanish and translated for

them and that the victims were separated when they gave their statements and made photograph

identifications. He said they showed the victims a single photograph because Ms. Tirado had

identified the defendant to the police as the man who had robbed them. He said the photograph

lineup shown to the victims contained a photograph of Deverance Bledsoe, the co-defendant, in the

second robbery. He said the gun was never recovered from either robbery.

On cross-examination, Sergeant Pearlman acknowledged that he could have shown the

victims a photograph lineup with the defendant instead of a single photograph but did not. He

acknowledged he wrote in his report that Ms. Tirado, Jose Torres, and Mr. Gutierrez identified the

defendant as the male who robbed them when the police arrived at the park. He said that when he

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made the report, he asked Ms. Tirado if the other three victims had seen the person who was arrested

and that Ms. Tirado said they had. He acknowledged he relied on Officer Cartwright’s report on the

first robbery to make his report. He acknowledged that he obtained a search warrant to search the

defendant’s apartment but that they did not find any money or weapons.

Memphis Police Officer John Morris testified that on September 2, 2002, around 4:00 p.m.,

he arrested the defendant after one of the victims called the police and reported seeing the man who

robbed her. He said that he went to the Waterstone Landing Apartments and that a park was in the

apartment complex. He said that he saw a black male that matched the description he had received

over the radio and that he stopped the man and asked for his identification. He said that he called

Sergeant Pearlman and that Sergeant Pearlman was talking to the victim. He said that the victim said

she could see them and that the man they had was the person who robbed her. He said that he

arrested the man and that he did not take the man over to the witness. He identified the defendant

as the man he arrested. On cross-examination, Officer Morris acknowledged the defendant did not

have a gun on him when he was arrested.

Memphis Police Officer Timothy Reynolds testified that he arrested the defendant for the

second robbery at the defendant’s apartment at Waterstone Apartments. He said that Deverance

Bledsoe was there when the defendant was arrested but that he did not arrest Mr. Bledsoe until a

week or two later. Officer Reynolds acknowledged that the defendant did not have a gun on his

person and that he did not see a gun in plain view in the defendant’s apartment.

Jose Miguel Savin Torres testified that he was from Baja, California, and southern Mexico

and that he spoke a little English. He said that he lived in Memphis for approximately three and a

half years and that he was robbed twice. He said that the first robbery occurred at his apartment on

a Friday between 11:00 a.m. and noon and that his wife, his brother, and Mr. Gutierrez were there.

He said he was in his bedroom when he saw Mr. Gutierrez walk in with “his face of fear.” He said

that a man with a gun asked for their wallets and that he threw his wallet on the floor. He said the

robber picked it up, saw there was no money in it, and said, “I want money.” He said the robber took

money and a cell phone from his brother. He said he was looking at the robber the entire time until

the robber told him to lie on the floor. He said that after the robber left, he called 9-1-1 and said, “I

need help.” He said he told the operator a man with a gun was inside his house. He said he gave the

phone to his wife after the operator asked him a question he did not understand.

Jose Torres testified that he saw the robber again a week or two later when he was robbed

a second time. He said that the robbery occurred around 6:00 p.m., that he was outside cleaning his

truck, and that it was light outside. He said he, his brother, Mr. Gutierrez, and Mr. Villapando, were

talking about the first robbery. He said the man who robbed him came up to them carrying a gun and

told them to give him their money. He said that another man was with the robber and that the other

man checked their pockets. He said he recognized the man with the gun as the man who had robbed

him previously. He said the robbers took money from him.

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Jose Torres testified that he again saw the man who robbed them at the park in his apartment.

He said that his brother told him, “He’s at the park,” and that he recognized the man from the two

robberies when he saw him in the park. He said his wife called the police on her cell phone and gave

them a description of the man. He said he saw the police stop the man. He said that he went to the

police station with the other victims to give a statement but that when he gave his statement only the

police officer and a translator were there. He said that he spoke to the assistant district attorney the

day before he testified and that his wife translated for him because Ms. Merediz was not there. He

identified the defendant in the courtroom as the man who robbed him twice.

On cross-examination, Jose Torres acknowledged that he did not see money taken from Mr.

Gutierrez during the first robbery. He said money was taken from his brother during the first

robbery. He acknowledged his brother told him the man who robbed them was in the park and told

him how the man was dressed. He said that he saw the police arrest the defendant and that he and

his wife drove past the defendant while he was being arrested.

Maria Conception Tirado testified that she spoke both English and Spanish. She said that

she had lived in Memphis and that she was the victim of a robbery. She said that Mr. Gutierrez

walked into the apartment with someone behind him and that she thought he needed someone to

translate for him. She said that when the black man turned, she saw he had a gun pointed at Mr.

Gutierrez’ ribs. She said the lighting in the apartment was clear, the blinds were open, and the lamp

was on. She said the man told her to go into the kitchen, then called her into the hall, pushed her into

the bedroom, and told her to lie on the floor. She said she told the man she could not lie on the floor

because she was eight and a half months pregnant. She said that the man said, “Give me your f------

money” and that he had the gun pointed at them. She said the man took money and a cell phone

from Elpidio Torres but did not take anything from anyone else in the room. She said the man may

have taken something from Mr. Gutierrez when they were outside. She said that before leaving, the

man said, “Count to ten, close your eyes, and do not say anything.” She said that her husband called

9-1-1 and that she grabbed the phone from him once she heard the man leave the apartment. She

said she was able to see the robber when he first walked in and during the robbery when she was two

feet from him. She said that she recognized the robber from the apartment complex and that she told

the police she had seen him around the apartments before.

Ms. Tirado testified that two or three weeks after the robbery, her husband, Jose Torres, ran

into the house, locked the door, and said, “They robbed us again. Please call 9-1-1. It’s the same

guy.” She said that two days after her husband was robbed the second time, Elpidio Torres told her,

“The guy is in the park.” She said her brother told her the man was wearing a brown shirt. She said

that she and her husband went to the park in a friend’s car and that she saw a group of men. She said

that she looked at the man in the brown shirt and that she recognized him from the first robbery. She

said she called 9-1-1 from a cell phone and gave the operator the report number for the robbery. She

said that the police came and that she saw the police arrest the man. She said that she also called

Sergeant Pearlman and that Sergeant Pearlman told her to give the police a sign that they had the

right man. She said she gave a sign to one of the officers when they drove past the police car. She

said that Sergeant Pearlman asked if she was sure it was the man and that she said she was.

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Ms. Tirado testified that she gave a statement at the police station and that she was not with

the other victims when she gave the statement. She said she did not translate for the other victims

at the police station. She said she did translate during the week of the trial for the assistant district

attorney when he was going over her husband’s statement with her husband. She identified the

defendant in the courtroom as the man who robbed her. On cross-examination, Ms. Tirado testified

that she stared at the defendant for approximately five minutes while he was in the park until she

knew he was the robber.

Before charging the jury, the trial court reduced six of the charges.

Case No. 03-00283 - Robbery on August 9, 2002

Count Charged Offense Reduced To

1 Agg. Rob. - Weapon Attp. Agg. Rob. - Weapon

2 Agg. Rob. - Fear Attp. Agg. Rob. - Fear

3 Agg. Rob. - Weapon Attp. Agg. Rob. - Weapon

4 Agg. Rob. - Fear Attp. Agg. Rob. - Fear

Case No. 03-00284 - Robbery on August 30, 2002

Count Offense Reduced To

1 Agg. Rob. - Weapon Attp. Agg. Rob. - Weapon

2 Agg. Rob. - Fear Attp. Agg. Rob. - Fear

The jury found the defendant guilty of all counts. The trial court merged seven of the counts into

other counts.

Case No. 03-00283 - Robbery on August 9, 2002

Count Offense Charged to Jury Verdict Merged Sentence

1 Attp. Agg. Rob. - Weapon Guilty 5 years

2 Attp. Agg. Rob. - Fear Guilty Into Count 1

3 Attp. Agg. Rob. - Weapon Guilty 5 years

4 Attp. Agg. Rob. - Fear Guilty Into Count 3

5 Agg. Rob. - Weapon Guilty 11 years

6 Agg. Rob. - Fear Guilty Into Count 5

7 Attp. Agg. Rob. - Weapon Guilty 5 years

Case No. 03-00284 - Robbery August 30, 2002

Count Offense Charged to Jury Verdict Merged Sentence

1 Attp. Agg. Rob. - Weapon Guilty 5 years

2 Attp. Agg. Rob. - Fear Guilty Into Count 1

3 Agg. Rob. - Weapon Guilty 11 years

4 Agg. Rob. - Fear Guilty Into Count 3

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5 Agg. Rob. - Weapon Guilty 11 years

6 Agg. Rob. - Fear Guilty Into Count 5

7 Agg. Rob. - Weapon Guilty 11 years

8 Agg. Rob. - Fear Guilty Into Count 7

The trial court ordered the sentences in Counts 1, 3, and 7 to be served concurrently to each other

and consecutively to Count 5, for an effective sentence of sixteen years in Case No. 03-00283. The

trial court ordered the sentences in Counts 1, 3, 5, and 7 to be served concurrently to each other, for

an effective sentence of eleven years in Case No. 03-00284. The trial court ordered the sixteen-year

sentence in Case No. 03-00283 to be served consecutively to the eleven-year sentence in Case No.

03-00284, for a total sentence of twenty-seven years to be served as a Range I, standard offender.

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that no rational trier of fact could conclude the defendant is guilty

beyond a reasonable doubt. The defendant asserts that no physical evidence existed and that a gun

was never located. He asserts the police found no evidence of the crimes in the defendant’s

apartment. He asserts several of the victims had trouble remembering how many perpetrators were

involved in the first robbery. He asserts Sergeant Pearlman’s reports state the victims were all on

the porch during the first robbery, which differs from the testimony of the victims. He asserts the

victims were together when they reported the crime, identified the defendant, and made their

statements.

The state responds that the evidence was sufficient for a rational juror to find the defendant

guilty beyond a reasonable doubt. The state notes that the four victims testified that the defendant

robbed or attempted to rob them at gunpoint. The state argues that although minor differences

existed in their testimony, the testimony was very similar, giving credibility to the state’s version of

the events. The state argues physical evidence is not a necessary prerequisite to find that sufficient

evidence existed for the jury to find beyond a reasonable doubt that the defendant was guilty.

Our standard of review when the defendant questions the sufficiency of the evidence on

appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh

the evidence; rather, we presume that the jury has resolved all conflicts in the testimony and drawn

all reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d

542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about

witness credibility are resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

Aggravated robbery, as it applies to the facts of this case, is the “intentional or knowing theft

of property from the person of another by violence or putting the person in fear” and “[a]ccomplished

with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably

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believe it to be a deadly weapon.” T.C.A. §§ 39-13-401, -402. To convict the defendant of the

attempted aggravated robbery offenses, the state must prove that the defendant “[i]ntentionally

engages in action or causes a result that would constitute [aggravated robbery] if the circumstances

surrounding the conduct were as the person believes them to be.” T.C.A. § 39-12-101(a)(1).

In the light most favorable to the state, the record supports the jury’s verdicts that the

defendant was guilty of aggravated robberies and attempted aggravated robberies on both occasions.

The four victims of the first robbery testified that the defendant came into their apartment, pointed

a gun at them, told them to lie on the floor, and demanded their money. The evidence showed the

defendant took ten dollars and a cell phone from Elpidio Torres during the first robbery.

Additionally, three of the four victims from the second robbery testified that the defendant and

another man approached them outside the apartment. The evidence showed the defendant had a gun

and pointed the gun at the victims during the second robbery while his accomplice checked the

victims’ pockets. Elpidio Torres testified the defendant took seven or eight dollars from him during

the second robbery. Mr. Gutierrez testified the defendant took twenty dollars from him during the

second robbery. Jose Torres testified that the defendant took money from him during the second

robbery and that the defendant demanded money at gunpoint from Mr. Villapando, the fourth victim

who did not testify. Elpidio Torres, Mr. Gutierrez, and Jose Torres testified they recognized the

defendant during the second robbery as the man who had robbed them previously. They, along with

Ms. Tirado, recognized the defendant when they saw him at the park of the apartment complex and

called the police. We conclude that the evidence was sufficient for a rational juror to find beyond

a reasonable doubt that the defendant committed the offenses of aggravated robbery of Elpidio

Torres and attempted aggravated robbery of Mr. Gutierrez, Jose Torres, and Ms. Tirado in Case No.

03-00283 and aggravated robbery of Elpidio Torres, Mr. Gutierrez, and Jose Torres and attempted

aggravated robbery of Mr. Villapando in Case No. 03-00284. The defendant is not entitled to relief

on this issue.

II. INTERPRETER

The defendant contends that the trial court erred in allowing the Spanish interpreter to

participate in the trial because the interpreter had participated in pretrial meetings with the assistant

district attorney and witnesses. The defendant asserts that he asked to call the interpreter as a witness

to make a record of his complaint about her participation in the trial and to discuss her expected

compensation but that his request was denied. The defendant notes that Canon 3 of Rule 41 of the

Tennessee Rules of the Supreme Court states an interpreter “shall be impartial and unbiased and

shall refrain from conduct that may give an appearance of bias.” He claims the interpreter’s meeting

with the assistant district attorney and the witnesses before the trial interfered with the objectivity

of the interpreter under Canon 3. He also argues that the interpreter should have declared in open

court the conflict and allowed the trial court to determine if she could serve.

The state responds that the trial court did not abuse its discretion in denying the defendant’s

motion for a mistrial. The state asserts the defendant failed to specify what actions by the interpreter

were improper. The state argues that the only possible conflict the interpreter could have had was

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that she was “involved in pretrial conferences with the state” and that although she did not disclose

this alleged conflict, the trial court determined the interpreter could serve in this case. The state also

contends that no rule exists barring an interpreter from assisting either party and serving as the

official court interpreter.

At the conclusion of Elpidio Torres’ testimony, the defendant requested a mistrial because

it “doesn’t feel right to have the official interpreter to be involved in pretrial conferences with the

state,” and it violates the defendant’s due process rights. The trial court found that

[I]n a perfect world, the state has its own employee that serves as an

interpreter, but she [left] the office

....

[The interpreter] - is a - in fact the only, at the present time,

state-certified court interpreter - is an extremely professional

individual and has taken an oath to translate accurately to the best of

her ability, and I have absolutely no reason, whatsoever, to suspect

that she would not do so. And I guess the jury, at this point, knows

that she assisted [the assistant district attorney] yesterday in the

translation in the pretrial matters, but that’s, I think, fairly

inconsequential in the whole scheme of things[.]

Canon 3 of Rule 41 of the Tennessee Rules of the Supreme Court addresses the impartiality

and avoidance of conflicts of interest for foreign language interpreters in Tennessee courts. It states

in pertinent part that

Whenever an interpreter has an actual or apparent conflict of interest,

the interpreter shall declare in open court before appointment such

conflict and let the court determine whether the interpreter may serve

in the case.

Tenn. Sup. Ct. R. 41, Canon 3.

The trial court’s appointment of an interpreter for a witness in a criminal case is a matter for

the trial court’s discretion and is subject to reversal only for an abuse of discretion. State v. Millsaps,

30 S.W.3d 364, 370 (Tenn. Crim. App. 2000). “[A]n appellate court should find an abuse of

discretion when it appears that a trial court applied an incorrect legal standard, or reached a decision

which is against logic or reasoning that caused an injustice to the party complaining.” State v.

Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (applying abuse of discretion standard on trial court’s

decision not to allow expert to testify). A defendant contending that a translation was inaccurate

must prove prejudice, and this court will not speculate about the accuracy of the translation.

Millsaps, 30 S.W.3d at 370.

-11-

The interpreter in this case should have disclosed to the trial court that she had translated for

the assistant district attorney during pretrial meetings with the victims. However, the record reflects

that the trial court addressed the possible conflict after the testimony of the first witness. We

acknowledge that the defense attorney asked the trial court to allow him to make a record of the

interpreter’s involvement of the proceedings and that the trial court denied the request. However,

the defense attorney first raised the issue at the end of the day on November 19, 2003, when he

objected because something “didn’t feel right” and did not state why the defendant would be

prejudiced by the interpreter translating during the trial. The trial court ruled on the objection and

placed its findings in the record. It was not until the end of the next day on November 20, 2003, that

the defense counsel requested to be able to make a record of the interpreter’s involvement, and by

that time, two more Spanish-speaking victims had testified. The trial court found the interpreter was

the only state certified interpreter, she had taken an oath to translate truthfully, and the court had no

reason to believe she was not translating truthfully. Additionally, the defendant has not

demonstrated or even alleged the translation was inaccurate. We conclude the trial court did not

abuse its discretion in allowing the interpreter to translate at the trial.

III. WITNESS TESTIMONY

The defendant contends that the trial court erred in allowing Elpidio Torres to testify about

other robberies involving Hispanic victims and to testify about the defendant’s state of mind. The

defendant also contends the trial court erred by not allowing the defendant to question witnesses

about their status in this country. The state asserts the trial court committed no error in allowing the

testimony of Elpidio Torres. It also asserts the trial court properly sustained the state’s objection to

the defendant’s asking Elpidio Torres if he was in the United States on a current work visa.

A. Testimony by Elpidio Torres

The defendant asserts the trial court erred in allowing Elpidio Torres to testify that he

“believe[d] [the defendant] didn’t want us to see him” and that “I didn’t want to look at him because

I didn’t think he wanted me to look at him,” because these statements called for speculation. He also

asserts the trial court erred in allowing Elpidio Torres to testify that at the time of the robbery, he was

feeling “fear - what one feels because these things happen all the time. Sometimes they take your

money and they still kill you.” He asserts that the comments became increasingly prejudicial and

that the trial court’s allowing the statements led the witness to believe that he was allowed to answer

questions inappropriately. He asserts that Elpidio Torres answered in response to a question on

cross-examination that “it’s not wasting my time because this has happened to a lot of us

Mexicans/Hispanics,” and that this comment was not appropriate or relevant and was made to

inflame the jury.

The state contends that the trial court did not err concerning the testimony of Elpidio Torres.

The state asserts the witness testified about his own state of mind, not the defendant’s, when he said

he believed the defendant did not want them to look at him. The state also asserts the witness’s

statement that robbers sometimes kill victims was relevant because the witness’s believing that made

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it more likely that he was placed in fear. The state asserts that if the trial court erred in allowing

either of these two statements, the error was harmless beyond a reasonable doubt given the weight

of the evidence. The state asserts the defendant waived the issue regarding the statement by the

witness that “this happened to a lot of us Mexicans” for failing to object, failing to ask for it to be

stricken from the record, failing to ask for a curative instruction, and failing to request a mistrial.

According to Rule 401 of the Tennessee Rules of Evidence, evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Relevant evidence may still

be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403. The trial court has discretion

in determining if evidence meets the test for relevancy. State v. Forbes, 918 S.W.2d 431, 449 (Tenn.

Crim. App. 1995). Assessing the probative value and danger of unfair prejudice regarding the

evidence also falls within the trial court’s discretion. State v. Burlison, 868 S.W.2d 713, 720-21

(Tenn. Crim. App. 1993). This court will only reverse a trial court’s decision if the trial court abused

that discretion. State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995).

We first note that the defendant failed to take any corrective action or to object to Elpidio

Torres’ statement during cross-examination that “this happened to a lot of us Mexicans.” Therefore,

he has waived this issue. See T.R.A.P. 36(a) (relief is not required if a party “failed to take whatever

action was reasonably available to prevent or nullify the harmful effect of the error”).

The defendant contests the evidence relating to Elpidio Torres’ testimony regarding his belief

that the defendant did not want him or the other victims to look at the defendant. The state asked

Elpidio Torres how he felt when he saw the robber with the gun, asked why he gave the defendant

his money, and asked about his ability to see the defendant during the robbery. The victim

responded that “I believe he didn’t want us to see him” and that “I didn’t want to look at him because

I didn’t think he wanted me to look at him.” The record reflects the defendant’s attorney objected

the first time “to what he believes.” The trial court overruled the objection. The record reflects the

witness was explaining why he did not want to look at the defendant and was not testifying to the

defendant’s state of mind. We conclude that the testimony was relevant to the witness’s description

of the robbery and his ability to see the defendant and that the trial court did not abuse its discretion

in allowing the testimony.

Next, the defendant contests the evidence relating to Elpidio Torres’ testimony regarding

robberies of other Hispanics. In response to the prosecutor’s question, “What were you feeling?”

Elpidio Torres responded, “It was fear - what one feels because these things happen all the time.

Sometimes they take your money and they still kill you.” The defendant objected “to what they do

other times.” The trial court overruled the objection “to the extent it satisfies one of the elements

of the offense.” Fear is one of the elements of aggravated robbery. See T.C.A. §§ 39-13-401, -402.

Fear may be presumed from facts indicating sufficient cause for fear. Sloan v. State, 491 S.W.2d

858, 861 (Tenn. Crim. App. 1972). The witness responded to the question by stating he felt fear

-13-

and explained why he felt the fear. We conclude that this testimony was relevant to explain the

witness’s fear and that the trial court did not abuse its discretion in allowing this testimony.

B. Immigrant Status of Witnesses

The defendant contends the trial court erred by not allowing the defendant to question

witnesses about their status in this country because the question had a good faith basis and was

relevant to prior bad acts of the witnesses. He argues that if a person is legally in the country, it is

probative of truthfulness, because if the person is here illegally, he or she is “lying everyday.” He

asserts the trial court failed to conduct a hearing outside the presence of the jury as required by the

rule.

The state asserts that the defendant did not request a jury-out hearing on this issue. The state

argues the witnesses’ work status in the United States was not relevant under Rule 401 of the

Tennessee Rules of Evidence. The state asserts that because the defendant failed to request a jury-

out hearing, “neither the State nor this Court knows” if Elpidio Torres was in the country illegally.

The state also argues that an immigrant’s illegal work status is not probative of truthfulness. The

state compares an illegal work status to criminal trespass, which this court has stated does not

involve dishonesty. See State v. Philpott, 882 S.W.2d 394, 403 n.16 (Tenn. Crim. App. 1994). The

state asserts the defendant failed to cite any authority in which a court has found that a witness’s

illegal status in the United States was probative of the witness’s character for truthfulness. The state

contends that if the trial court did err, the error was harmless beyond a reasonable doubt.

The record reflects that on cross-examination the defendant’s attorney asked Elpidio Torres,

“Are you here on a current work visa?” The prosecutor asked to approach the judge, and a bench

conference was held.

[STATE]: Object to relevance.

[DEFENDANT]: It was made relevant by [the state] asking if he

was a citizen.

[STATE]: It goes to explain his language. The purpose

he’s here and whether or not he’s legal or not

is irrelevant.

[DEFENDANT]: He can explain language by asking the

question, “Do you speak English?”

[COURT]: I agree with that, and I agree that the question

regarding citizenship may not have been

relevant, but there was no objection to that,

-14-

and I don’t see any relevance to going any

deeper into it.

[DEFENDANT]: But I say it’s now become relevant based on

the direct examination -

[COURT]: Well, had there been an objection at the time,

I might have sustained it - in all likelihood I

would have sustained it; but at this point, I

just don’t think it’s relevant, and I’ll sustain -

[DEFENDANT]: And I apologize if I didn’t make my point

clear. I didn’t object, and I’m not suggesting

that I’m objecting now; but because the state

put it into relevance, and that is the reason I

want to ask about his status here is because

[the state] asked, on direct, whether or not he

was a citizen of this country.

[COURT]: And he said he was not. There’s no need to

go any further.

“The propriety, scope, manner and control of the cross-examination of witnesses . . . rests

within the sound discretion of the trial court.” State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim.

App. 1995); see also Coffee v. State, 216 S.W.2d 702, 703 (Tenn. 1948). Furthermore, “a

defendant’s right to confrontation does not preclude a trial court from imposing limits upon

cross-examination which take into account such factors as harassment, prejudice, issue confusion,

witness safety, or merely repetitive or marginally relevant interrogation.” State v. Reid, 882 S.W.2d

423, 430 (Tenn. Crim. App. 1994). This court will not disturb the limits that a trial court has placed

upon cross-examination unless the court has unreasonably restricted the right. Dishman, 915 S.W.2d

at 463; see State v. Fowler, 373 S.W.2d 460, 466 (Tenn. 1963).

According to Rule 401 of the Tennessee Rules of Evidence, evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” “All relevant evidence is

admissible . . . . Evidence which is not relevant is not admissible.” See Tenn. R. Evid. 402.

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

danger of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403. A

trial court has the discretion to determine if evidence meets the test for relevancy. Forbes, 918

S.W.2d at 449.

Pursuant to Rule 608(b) of the Tennessee Rules of Evidence, specific instances of conduct

may be used to impeach a witness during cross-examination if the conduct is probative of the

-15-

witness’s character for truthfulness or untruthfulness. Before a witness can be questioned about the

specific instance of conduct, the trial court, upon request, must hold a hearing to determine if “the

alleged conduct has probative value and that a reasonable factual basis exists for the inquiry.” Tenn.

R. Evid. 608(b)(1).

We first note that the defendant did not request that the trial court conduct a hearing to

determine the probative value of Elpidio Torres’ immigration status and that it was the defendant’s

responsibility to request such a hearing. Additionally, the defendant did not argue that Elpidio

Torres’ immigrant status was probative of truthfulness but simply argued that it was relevant based

on the witness’s direct examination. The defendant now argues on appeal that this evidence was

relevant under Rule 608 because it was probative of the witness’s truthfulness. “As a general rule,

a party may not litigate an issue on one ground, abandon that ground post-trial, and assert a new basis

or ground on appeal.” State v. Leach, 148 S.W.3d 42, 55 (Tenn. 2004). The trial court concluded

that the witness’s immigrant status in this country was not relevant to the issues on trial. We cannot

conclude that the trial court abused its discretion. The defendant is not entitled to relief on this issue.

IV. PROSECUTOR’S STATEMENTS

The defendant contends the trial court erred in allowing the prosecutor to make improper

comments during voir dire and in closing arguments. The state responds that the trial court did not

err in allowing the state’s comments during voir dire about the defendant’s right to testify or in

allowing the prosecutor’s statements in closing argument.

A. Voir Dire

The defendant contends the trial court erred by allowing the prosecutor to make improper

comments during the voir dire process about the defendant’s right not to testify. He claims that any

adverse comment made by the prosecutor upon failure of the defendant to testify constitutes a

violation of the defendant’s rights. He contends the violation is reversible error unless the trial judge

requires counsel to stop and properly instructs the jury.

The state responds that the trial court properly allowed the prosecutor to make comments

during voir dire that the defendant was not required to testify at the trial. The state asserts that the

defendant did not contemporaneously object to the prosecutor’s comments and did not ask the court

for a curative instruction. The state argues that the comment was harmless beyond a reasonable

doubt given the context in which it was made. It asserts the prosecutor’s intent in making the

statement was to impress on the jury that if the defendant chose to testify, his credibility should be

judged the same as any other witness. The state asserts the defendant objected only after the

prosecutor mentioned the defendant’s right to testify three times. The state asserts the trial court

charged the jury before deliberations about the defendant’s right not to testify.

During voir dire, the assistant district attorney made the following statements regarding the

defendant’s right not to testify:

-16-

The defendant doesn’t have to prove anything. Does

everybody agree that’s fair.

....

That the defendant shouldn’t have to prove he’s innocent?

....

Does that mean he can’t put on proof?

....

No. He doesn’t have the burden of proof. He doesn’t have

to prove anything, but that doesn’t mean he can’t put on proof.

....

If the defense puts on proof - calls witnesses to the stand - do

you use different rules for judging the witnesses’ - their witnesses’

credibility than you do for the State of Tennessee’s witnesses? Do

you use different rules? No. You use the same rules for judging the

credibility of witnesses for both sides.

....

The defense doesn’t have to put on any proof. The defendant

doesn’t have to testify. Judge Dailey will tell you what you already

know, I submit. Has anybody ever heard that - the right to remain

silent?

....

I submit the defendant does not have to testify, and Judge

Dailey will tell you what the law is. If he doesn’t, you cannot hold

that against him because he doesn’t have the burden of proof. That’s

fair, right?

....

Does that mean he can’t testify? No.

-17-

The defense attorney then asked the court for a bench conference and objected to the “last few

questions about does it mean he doesn’t need - can’t testify - doesn’t have to testify - tends to

comment on the shifting of the burden of proof.” The trial court told the defense attorney, “You can

certainly - if you feel as though it’s been misstated, you can clarify when you get up to address the

jury.” The assistant district attorney then continued in his voir dire stating that

The state has the burden of proof, and the defense doesn’t have to put

on any proof. The defendant doesn’t have to testify. He doesn’t.

You cannot hold that against him. If he does choose to testify, do you

use different rules to judge his credibility? No. Does he get bonus

points for taking the stand when he doesn’t have to? No. You use

the same rules for both sides.

Prosecutorial misconduct does not constitute reversible error unless the outcome was affected

to the defendant’s prejudice. State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001). In Judge v. State,

539 S.W.2d 340, 344 (Tenn. Crim. App. 1976), this court set out the following considerations for

determining if the prosecutor’s conduct could have improperly prejudiced the defendant and affected

the verdict:

1. The conduct complained of viewed in context and in light of the

facts and circumstances of the case.

2. The curative measures undertaken by the court and the

prosecution.

3. The intent of the prosecutor in making the improper statement.

4. The cumulative effect of the improper conduct and any other

errors in the record.

5. The relative strength or weakness of the case.

See also State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (approving these factors in determining

if the misconduct resulted in reversible error).

The prosecutor’s comments during voir dire were not improper. The prosecutor’s statements

were made to determine if the potential jurors could weigh the credibility of the defendant’s

testimony, if he testified, in the same way it would weigh any other witness’s credibility.

Additionally, the trial court gave the jury an instruction regarding the defendant’s right not to testify

in the jury charge. We conclude the trial court did not err in allowing the prosecutor’s statements

during voir dire. The defendant is not entitled to relief on this issue.

-18-

B. Closing Argument

The defendant also contends the trial court erred by allowing the state to argue in closing that

“this happens to Mexicans all the time,” because the argument had no legitimate purpose and could

only serve to inflame the jury. He asserts the state’s closing argument asked the jury to consider

helping Hispanic victims vindicate the crimes committed against them. He claims that the intent of

the prosecutor was improper and that the cumulative effect of the errors at the trial is undeniable.

The state argues that the trial court did not abuse its discretion in overruling the defendant’s

objection to the prosecutor’s closing argument about the testimony of Elpidio Torres. The state

asserts the defendant did not make a specific objection and did not seek a curative instruction during

the closing argument. The state asserts the prosecutor’s sole intent in making the statements was to

remind the jury how serious Elpidio Torres viewed the crimes committed against him and the other

victims. The state also asserts the case against the defendant was very strong and argues that if the

prosecutor’s statements are determined to have been improper, they did not affect the verdict to the

defendant’s detriment. The state asserts that its finding the lesser included offenses in four of the

charges reflects that the jury was not “so inflamed” that it spared the defendant no mercy.

During the state’s rebuttal in closing argument, the prosecutor argued that

[The defendant’s attorney] asked, “Why are we here?” He

asked, “Why are you all here?” . . . why are [the victims] here?

They’re not making any money being here either. They’re not able to

work and earn money while they’re sitting here out in the witness

room waiting day after day after day to come in here. What do they

have to gain from this?

[Elpidio Torres] told you - when [the defendant’s attorney]

asked him, “Don’t you think this is serious?” He said, “Yes, this is

serious. This is serious because we’re seeking justice because this

happens to us all the time.”

The defendant’s attorney then said, “Object. Your Honor.” The trial court immediately responded,

“Overruled.” The prosecutor continued arguing that

“This happens to us Mexicans all the time.” And they’re not just

wanting to get anybody, because they didn’t - to spite their chance.

They’re wanting to hold those responsible that are responsible - the

people - or the person in this case - him- that they told you, without

any doubt in their mind, the guy with the gun from both occasions.

Shortly after the defendant’s objection, the trial court sent the jury out of the courtroom for

a recess. The trial court explained its reasoning in overruling the defendant’s objection.

-19-

Just to elaborate a little bit on my ruling on this last objection. I

didn’t really want to interrupt the argument as it was going on, but I

did see [the defendant’s attorney] -

So in the event [the defendant] is convicted and this matter

goes up, the reason why I thought his argument was entirely

appropriate is that in rebuttal or response what [the defendant’s

attorney] had argued; that “Use your common sense. Why would

anyone who lives in this apartment complex rob someone not only

once but why would they rob them twice and then just hang out three

days later in the same apartment complex where the victims were

known to live. And I think it’s a perfectly reasonable inference from

the facts and the testimony in the case that common sense would

suggest that the victims are Hispanic and may be easy prey - whose

employment status may not be certain - who may be reluctant to

report - who may have cash on Fridays; that under these

circumstances, it may well make common sense. It’s up to the jury

to determine, but I think that’s an appropriate response by the state to

what was argued by the defense.

The Tennessee Supreme Court has recognized that “argument of counsel is a valuable

privilege that should not be unduly restricted.” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).

Attorneys have great leeway in arguing before a jury, and the trial court’s broad discretion in

controlling their arguments will be reversed only upon an abuse of discretion. Terry v. State, 46

S.W.3d 147, 156 (Tenn. 2001). However, closing argument must be “temperate, must be predicated

on evidence introduced during the trial of the case, and must be pertinent to the issues being tried.”

Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976).

The record reveals that the defense attorney argued in his closing argument that the defendant

would not have committed a crime in the apartment complex where he lived because he would be

seen there on a regular basis. The prosecutor repeated the testimony of Elpidio Torres that, “This

happens to us Mexicans all the time,” to rebut the defense’s argument that common sense tells you

the defendant would not have committed the crime in his own apartment complex. The trial court

overruled the defendant’s objection and did not give a curative instruction during the closing

argument. However, the trial court did instruct the jury that “[s]tatements, arguments, and remarks

of counsel are intended to help you in understanding the evidence and applying the law, but they are

not evidence. If any statements are made that you believe are not supported by the evidence, you

should disregard them.” Additionally, taking the statement in context with all of the proof and the

arguments, we cannot say that the statement affected the verdict. The defendant is not entitled to

relief on this issue.

-20-

V. LESSER INCLUDED OFFENSES

The defendant contends that the trial court erred in refusing to charge the jury with theft of

property as a lesser included offense of aggravated robbery because the facts supported the

instruction. The defendant claims he was not required to request the instruction in writing. The state

concedes theft of property is a lesser included offense of aggravated robbery. The state asserts that

the defendant presented no evidence contesting the fact that a deadly weapon was used in the

robberies and that there was overwhelming proof a gun was used. The state contends that the trial

court’s failure to instruct the jury as to theft of property as a lesser included offense of aggravated

robbery was harmless beyond a reasonable doubt.

The record reflects that the defendant requested the jury instruction on theft of property in

open court and that he did not make the request in writing. The trial court denied the defendant’s

request to charge theft of property as a lesser included offense stating that

Well, I’m not going to for several reasons. It wasn’t requested

in writing as the rules now require. And since this case, from the

outset, has been one involving the question of identity - there was

even a statement from [the defendant’s attorney], respectfully, early

on to the jury that the defense is not contesting that these people were

robbed. The only question is one of identity; that under any of the

case law - any reasonable examination of what should be charged,

nothing below robbery would be appropriate factually[.]

In criminal cases, the trial court has the duty to charge the jury on all of the law that applies

to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). Tennessee Code

Annotated section 40-18-110(c) provides

Notwithstanding any other provision of law to the contrary, when the

defendant fails to request the instruction of a lesser included offense

as required by this section, such instruction is waived. Absent a

written request, the failure of a trial judge to instruct the jury on any

lesser included offense may not be presented as a ground for relief

either in a motion for a new trial or on appeal.

In State v. Page, our supreme court held that Tennessee Code Annotated section 40-18-110(c) does

not violate a defendant’s right to trial by jury. 184 S.W.3d 223, 231 (Tenn. 2006). The court also

held “that by failing to request such an instruction, the defendant waived his right to seek plenary

appellate review of the issue.” Id. However, the statute does not preclude plain error review. Id.

at 230-31.

In State v. Burns, 6 S.W.3d 453 (Tenn. 1999), our supreme court adopted a modified version

of the Model Penal Code in order to determine what constitutes a lesser included offense:

-21-

An offense is a lesser-included offense if:

(a) all of its statutory elements are included within the statutory

elements of the offense charged; or

(b) it fails to meet the definition in part (a) only in the respect that it

contains a statutory element or elements establishing

(1) a different mental state indicating a lesser kind of

culpability; and/or

(2) a less serious harm or risk of harm to the same

person, property or public interest; or

(c) it consists of

(1) facilitation of the offense charged or of an offense

that otherwise meets the definition of lesser-included

offense in part (a) or (b); or

(2) an attempt to commit the offense charged or an

offense that otherwise meets the definition of

lesser-included offense in part (a) or (b); or

(3) solicitation to commit the offense charged or an

offense that otherwise meets the definition of

lesser-included offense in part (a) or (b).

Burns, 6 S.W.3d at 466-67.

If an offense is a lesser included offense, then the trial court must conduct the following

two-step analysis in order to determine if the lesser included offense instruction should be given:

First, the trial court must determine whether any evidence exists that

reasonable minds could accept as to the lesser-included offense. In

making this determination, the trial court must view the evidence

liberally in the light most favorable to the existence of the

lesser-included offense without making any judgments on the

credibility of such evidence. Second, the trial court must determine

if the evidence, viewed in this light, is legally sufficient to support a

conviction for the lesser-included offense.

Id. at 469.

-22-

Theft of property occurs when a “person commits theft of property if, with intent to deprive

the owner of property, the person knowingly obtains or exercises control over the property without

the owner’s effective consent.” T.C.A. § 39-14-103. Theft of property is a lesser included offense

of aggravated robbery under part (a) of the Burns test. See State v. Bowles, 52 S.W.3d 69, 79-80

(Tenn. 2001) (holding that theft is a lesser included offense of robbery); State v. Lewis, 36 S.W.3d

88, 99-100 (Tenn. Crim. App. 2000) (stating theft of property is a Burns part (a) lesser included

offense of attempted robbery); State v. Curtis Buford, No. W2003-00370-CCA-R3-CD, Shelby

County, slip op. at 7 (Tenn. Crim. App. Mar. 2, 2004), app. denied (Tenn. Sept. 13, 2004) (theft of

property is included in the definition of aggravated robbery and is a lesser included offense).

“Evidence sufficient to warrant an instruction on the greater offense will also support an

instruction on a lesser offense under part (a) of the Burns test. In proving the greater offense, the

State necessarily has proven the lesser offense because all of the statutory elements of the lesser

offense are included in the greater.” State v. Richmond, 90 S.W.3d 648, 660 (Tenn. 2002). The

trial court must give a lesser included offense instruction that is supported by the evidence even if

the instruction would be inconsistent with the theories of the state and defense. State v. Allen, 69

S.W.3d 181, 187-88 (Tenn. 2002). Therefore, the trial court erred in failing to give an instruction

on the lesser included offense of theft of property.

If a trial court improperly omits a lesser included offense instruction, then constitutional

harmless error analysis applies and this court must determine if the error did not affect the outcome

of the trial beyond a reasonable doubt. State v. Ely, 48 S.W.3d 710, 725 (Tenn. 2001). “In making

this determination, a reviewing court should conduct a thorough examination of the record, including

the evidence presented at trial, the defendant’s theory of defense, and the verdict returned by the

jury.” Allen, 69 S.W.3d at 191.

The supreme court has held that when a jury convicts on the greater offense to the exclusion

of the immediately lesser included offense, the error in failing to instruct will normally be harmless

beyond a reasonable doubt. State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998). The trial court

instructed the jury on the charged offenses of aggravated robbery and the immediately lesser included

offense of robbery. The jury chose to convict the defendant of the greater offenses. Therefore,

consideration of the trial court’s error is not necessary to do substantial justice, and the defendant

is not entitled to relief on this issue.

VI. SENTENCING

The defendant contends that the trial court erred in applying enhancement factors and in

ordering consecutive sentencing. The state responds that the defendant waived review of sentencing

for failing to include in the record a copy of the presentence report and copies of the letters written

on the defendant’s behalf. It asserts the state made it clear it was relying on the presentence report,

referring to it five times during the sentencing hearing. It asserts the defendant has the burden of

showing that sentencing is improper and must provide this court with all the materials it must have

to conduct a de novo review. The state also argues the trial court properly sentenced the defendant.

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At the sentencing hearing, Memphis Police Detective Miguel Aguila testified that in the last

few years, targeting Hispanics to be victims of crimes had become common. He said that

approximately eighty percent of the home invasion robberies he had investigated involved Hispanic

victims. He said the language barrier created special problems in catching and prosecuting the

suspects. He said Hispanic victims were reluctant to report crimes because they had difficulty in

communicating. He said he had investigated some cases where the victims were victimized two,

three, or four times. He said that there was “a percentage of illegal residents” in Memphis and that

they were hesitant to call the police because they were afraid of deportation. He said that the

majority of Hispanic victims save the money they get paid once a week and that at the end of the

month, they mail the money to their families in Mexico. He said the members of the Hispanic

community were being targeted because of their racial and language differences.

The state told the trial court it would rely on the defendant’s presentence report and did not

present any further proof. The presentence report was not introduced as an exhibit. The presentence

report also has not been included in the record. The defendant submitted thirteen letters written on

behalf of the defendant to the trial court but did not enter those letters as exhibits. The letters also

have not been included in the record.

Appellate review of sentencing is de novo on the record with a presumption that the trial

court’s determinations are correct. T.C.A. § 40-35-401(d) (2003).2 As the Sentencing Commission

Comments to this section note, the burden is now on the appealing party to show that the sentencing

is improper. This means that if the trial court followed the statutory sentencing procedure, made

findings of fact that are adequately supported in the record, and gave due consideration and proper

weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act,

we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of correctness which accompanies the trial court’s action is

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

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). In this respect, for the purpose of meaningful appellate review,

the trial court must place on the record its reasons for arriving at the

final sentencing decision, identify the mitigating and enhancement

factors found, state the specific facts supporting each enhancement

factor found, and articulate how the mitigating and enhancement

factors have been evaluated and balanced in determining the sentence.

T.C.A. § 40-35-210(f) (1990).

2

W e note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-102,

-114, -210, and -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 5, 6, 8. However, the amended code sections are

inapplicable to the defendant’s appeal.

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State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994). Also, in conducting a de novo review, we must

consider (1) the evidence, if any, received at the trial and sentencing hearing, (2) the presentence

report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and

characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any

statement that the defendant made on his own behalf, and (7) the potential for rehabilitation or

treatment. T.C.A. §§ 40-35-102, -103, -210 (2003); see Ashby, 823 S.W.2d at 168; State v. Moss,

727 S.W.2d 229, 236-37 (Tenn. 1986).

The sentence to be imposed by the trial court is presumptively the minimum in the range for

a Class B felony or Class C felony unless there are enhancement factors present. T.C.A. §

40-35-210(c) (2003). Procedurally, the trial court is to increase the sentence within the range based

upon the existence of enhancement factors and, then, reduce the sentence as appropriate for any

mitigating factors. T.C.A. § 40-35-210(d), (e) (2003). The weight to be afforded an existing factor

is left to the trial court’s discretion as long as it complies with the purposes and principles of the

1989 Sentencing Act and its findings are adequately supported by the record. T.C.A. § 40-35-210

(2003), Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at

169.

Initially we note that the defendant has hampered our de novo review by failing to include

the presentence report in the record on appeal. It is incumbent upon the appellant to prepare a record

that conveys a fair, accurate, and complete account of what transpired relative to the issues on

appeal. T.R.A.P. 24(b); State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). This rule applies to

sentencing hearings. State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim. App. 1987). In the absence

of an appropriate record, we must presume that the trial court’s determinations are correct. See, e.g.,

State v. Meeks, 779 S.W.2d 394, 397 (Tenn. Crim. App. 1988); Beech, 744 S.W.2d at 588.

A. Application of Enhancement and Mitigating Factors

The defendant asserts the trial court imposed an excessive sentence because he had a minimal

criminal history. He acknowledges the trial court considered the enhancement and mitigating factors

submitted by the parties but asserts the trial court did not apply the sentencing principles. The

defendant asserts that he had only two prior simple possession of marijuana charges. The defendant

asserts the trial court erred in applying enhancement factor (3), that the defendant was “a leader in

the commission of the offense involving two (2) or more actors,” to both robberies. See T.C.A. §

40-35-114(3). The state asserts the trial court correctly applied the three enhancement factors.

The trial court found that the following enhancement factors applied: (2) the defendant had

a previous history of criminal convictions or criminal behavior, (3) the defendant was the leader in

the commission of the offense, and (23) the defendant intentionally selected the victims in whole or

in part because of the defendant’s “belief or perception regarding the race . . . national origin,

ancestry or gender” of the victims. See T.C.A. § 40-35-114(2), (3), (23). The trial court applied

enhancement factor (2) based upon proof that the defendant “does have a previous history of criminal

convictions or criminal behavior in addition to those necessary to establish the appropriate range.”

In applying enhancement factor (3), the trial court found the defendant was “obviously the one that

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set up the robbery and targeted these victims because he was the one who robbed them three or four

weeks earlier.” In applying enhancement factor (23), the trial court found this factor to be the most

important of all the enhancement factors based on the testimony that had been presented at the

sentencing hearing.

The defendant presented three mitigating factors for consideration by the trial court: (1) the

defendant’s conduct did not threaten or cause bodily injury; (6) the defendant, because of his youth

lacked substantial judgment in committing the offense; and (13) the defendant had a minimal

criminal history. See T.C.A. § 40-35-113(1), (6), (13). The trial court rejected all three mitigating

factors. The trial court found the defendant did not qualify as a youth because he was twenty-one

or twenty-two years old. It found that although shots were not fired, shots were threatened, and the

victims’ lives were threatened. The trial court made no specific finding on the minimal criminal

history not being a mitigating factor.

With regard to enhancement factor (2), that the defendant had a history of criminal

convictions or criminal behavior, we must presume that the trial court’s application was proper

because of the absence of the defendant’s presentence report from the record. With regard to

enhancement factor (23), that the defendant selected the victims based on their race or national

origin, the defendant did not assert that this enhancement factor was incorrectly applied. The state

presented evidence at the sentencing hearing about Hispanics being the targets of robberies. The

record reflects the defendant lived in the same apartment complex and targeted these particular

victims on two different occasions. The trial court stated that

But the obvious counter to that is he did go back and rob the

same people a second time because they were Hispanic, because he

knew or thought he knew, he felt that they wouldn’t report it and he

would be home free because they were Hispanic.

We conclude that enhancement factor (23) was properly applied by the trial court.

With regard to enhancement factor (3), that the defendant was the leader in the commission

of the offense, the defendant contends the trial court should not have applied this factor to the first

robbery. We agree with the defendant that this factor does not apply to the first robbery. The trial

court found that the three enhancement factors applied and applied the three factors to all

convictions. The trial court did not distinguish between the convictions for the first robbery in Case

No. 03-00283 and the convictions for the second robbery in Case No. 03-00284. All four of the

victims testified that one man, the defendant, robbed them on the first occasion. We conclude

enhancement factor (3) does not apply to Case No. 03-00283.

We conclude that the mitigating factors (1), (6), and (13) do not apply in this case. The

defendant did threaten serious bodily injury by pointing a gun at the victims and demanding the

victims give them money, therefore, mitigating factor (1) does not apply. See State v. William

Ramsey, No. M2001-02735-CCA-R3-CD, Warren County, slip op. at 19 (Tenn. Crim. App. July 15,

2003) (concluding mitigating factor (1) did not apply in an aggravated robbery case when the co-

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defendant threatened the victim’s life with a knife). With regard to mitigating factor (6), that

because of defendant’s youth he lacked substantial judgment in committing the offense, the record

reflects the defendant was twenty-four years old when he committed the robberies. We have no

other information regarding the defendant’s education, experience, or mental health because the

presentence report was not included in the record. Therefore, we must presume that the trial court’s

rejection of mitigating factor (6) was correct. With regard to mitigating factor (13), that the

defendant had a minimal criminal history, we also must presume that the trial court’s rejection of

mitigating factor (13) was proper because of the absence of the defendant’s presentence report from

the record.

We conclude that the trial court properly applied the enhancement factors to the conviction

arising from the second robbery in Case No. 03-00284. However, we conclude that the trial court

improperly applied enhancement factor (3) to the convictions arising from the first robbery in Case

No. 03-00283. We note that the trial court stressed that enhancement factor (23) was the most

important of the three enhancement factors it applied and that the trial court did not say how much

weight it gave to the other two factors. Because the presentence report was not included in the

record on appeal, we are unable to conduct a full de novo review of the sentences in Case No. 03-

00283. In the absence of an appropriate record, we must presume that the trial court’s

determinations are correct. See e.g., Meeks, 779 S.W.2d at 397; Beech, 744 S.W.2d at 588. The

defendant is not entitled to relief on this issue.

B. Consecutive Sentencing

The defendant acknowledges it is hard to argue that the two cases should not run

consecutively but asserts the trial court erred in ordering the aggravated robbery in Case No. 03-

00283 of the first indictment to run consecutively to all the other sentences. He contends that the

trial court erred in finding the defendant was a dangerous offender whose actions indicated little or

no regard for human life and that the trial court did not consider the fact that no shots were fired and

no one was injured. He argues that there was nothing extraordinary about the crimes and that the

defendant has no history to lead the trial court to believe consecutive sentencing is necessary to

protect the public.

The state contends the trial court properly sentenced the defendant. It argues that the trial

court properly found the defendant was a dangerous offender whose behavior indicates little or no

regard for human life and that consecutive sentencing was reasonably related to the severity of the

offenses and necessary to protect the public. See State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn.

1995).

The trial court found that the two cases No. 03-00283 and No. 03-00284 should be served

consecutively because the defendant was a dangerous criminal and from a public policy standpoint

the cases should be consecutive. It stated that

[F]actoring in what I think is a clear and fair conclusion from the

facts of this case, factoring in the fact that he targeted these people

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because they were Hispanics and certainly targeted them the second

time for that reason, this makes him a particularly dangerous

offender.

....

I think that makes him a particularly dangerous offender to be

of a mind-set to commit this type of offense against these victims,

same place, same place where he lives, short period of time. I think

in my opinion makes this factor apply.

And then the remaining two factors, consecutive sentences

reasonably relate to the severity of the offenses and are necessary in

order to protect the public from further serious conduct by this

defendant. I think they apply as well when you read the transcript and

review the facts of this case and the unique circumstances of the

victims.

. . . If a person were allowed to commit an aggravated robbery

and then go commit another one and commit another one and commit

another one and serve concurrent time for it all, then there would be

no deterrent at all from committing additional offenses.

The trial court also found that the three attempted aggravated robbery convictions should be served

consecutively to the aggravated robbery conviction in Case No. 03-00283. The trial court stated that

[T]he one instance in which I think should be consecutive time is that

first offense where he confronted [the victim] on the outside smoking

a cigarette and forced him at gunpoint to go back inside the

apartment. He could have completed his robbery then and there and

left. But he elected to force this man back into the apartment where

these many people were and continue the robbery. So I think that that

offense should be served for the same reason as I indicated with

regard to the two sets of offenses consecutively.

The defendant acknowledges, “it is hard to argue that separate incidents should not be

sentenced in a consecutive manner.” The defendant robbed four victims at gunpoint and later robbed

three of the same victims again at gunpoint. During the first robbery, the defendant forced Mr.

Gutierrez inside the apartment. He told the victims, including a pregnant woman, to lie down on the

floor and demanded their money. During the second robbery, the defendant, along with an

accomplice, walked up to the four victims in the middle of the apartment complex’s parking lot. The

defendant pointed a gun at the victims while his accomplice went through the victims’ pockets. The

trial court noted the “brazenness” and “arrogance” involved in robbing people living in his own

apartment complex where he knew the victims would see him again. The trial court found that the

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defendant was a dangerous offender, that consecutive sentencing reasonably relates to the severity

of this offense, and that the defendant needs to be incarcerated to protect society from his future

criminal conduct. We agree. The defendant is not entitled to relief on this issue.

CONCLUSION

Based upon the foregoing and the record as a whole, we affirm the judgments of the trial

court.

___________________________________

JOSEPH M. TIPTON, JUDGE

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