State of Tennessee v. Andre Edward Hicks

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 10, 2003

STATE OF TENNESSEE v. ANDRE EDWARD HICKS

Direct Appeal from the Criminal Court for Davidson County

No. 2002-B-641 Cheryl Blackburn, Judge

No. M2003-00818-CCA-R3-CD - Filed April 2, 2004

The Appellant, Andre Edward Hicks, was convicted after a trial by jury of aggravated robbery and

was sentenced as a persistent offender to thirty years in the Department of Correction. On appeal,

Hicks raises the following issues for our review: (1) whether the evidence was sufficient to support

the verdict and (2) whether his sentence was proper. After a review of the record, the judgment of

the Davidson County Criminal Court is affirmed.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and DAVID

H. WELLES, J., joined.

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on

appeal); and Joan A. Lawson and James McNamara, Assistant Public Defenders (at trial), for the

Appellant, Andre Edward Hicks.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R.

Helper, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and

Bret Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background

On December 6, 2000, Steven Treece was working as the store manager for the Tennessee

State University (TSU) bookstore in Nashville. At approximately noon, Larita Lyons, the store’s

bookkeeper, informed Treece that he needed to go to the bank because the “store needed some cash.”

It was a “buy-back” period at the school, which meant that the store needed cash to “buy-back”

textbooks from students. At approximately two o’clock, Treece left the bookstore to go to the bank

with Scott Pearson, the store’s general merchandise manager. Treece did not tell anyone, even

Pearson, that they would be going to the bank. The two went to the AmSouth Bank on Clarksville

Highway and received $30,000 in cash, which Treece placed in a backpack. They then returned to

the store and parked in the loading dock area.

Treece described the route to the bookstore, “From the parking area, there is a ramp that you

walk up. You go through a set of double doors, go down a short hallway, and turn left, and then

behind, kind of tucked to the side is our elevator door.” According to Treece, no other office or

business uses that elevator. When Treece turned the corner to reach the elevator, he “saw a figure

that was dressed all in black, and he was leaned up against the elevator doors.” The man was

wearing a mask over his face, which exposed the “bridge” between his eyes. Treece described the

man as “[s]ix-one, brown complected, maybe 180 pounds[.]” The man pulled a gun on Treece and

pointed it at his chest. Out of the corner of his eye, Treece saw Pearson, who had not yet rounded

the corner, running away. Treece put his hands up and gave the person the backpack filled with cash.

The robber initially told Treece to get on his knees, but the elevator door opened, and the robber told

him to get on the elevator. Treece complied, and the robber reached into the elevator and pressed

the second floor button. As the doors were closing, the person squeezed the trigger twice, although

the gun did not fire.

As soon as the elevator door opened on the second floor, Treece saw TSU Officer Frank

White and told him that he had just been robbed. White “jumped” on the elevator, and the two went

downstairs to look for the robber. According to Treece,

[w]hen we came out, when we hit the parking lot, you can either go to the right and

go behind the residence halls or you can go diagonally to come in front of them and

end up in the parking lot and so we came diagonally, running toward 33rd Avenue.

Pearson, who was trying to phone the police, saw the two men running across the campus and joined

them in their pursuit. As they ran through a parking lot, they observed a man “dressed in the same

clothes” as the robber. Treece stated, “He was, he wasn’t running full speed, but he was moving

really quickly, and he was looking side to side at the point that I first saw him.” Treece identified

the man, who now had his ski mask “rolled” up, as the Appellant. Treece told Officer White he

knew who it was. Treece was familiar with the Appellant because he was Ms. Lyons’ boyfriend.

Treece explained, the Appellant “sometimes would drop [Lyons] off and pick her up so I would see

him twice in the same day, so I saw him several times throughout the course of a couple of years.”

Pearson testified that he looked at the man and observed that he was dressed “exactly the same” as

the person who he saw robbing Treece.

After the Appellant looked back and saw Treece, “he sped completely across the street.” The

group then lost sight of the Appellant. As they stood in the street, they saw “Ms. Lyons’ rental car

make a U-turn and go back the opposite way.” At that point, Treece told both Officer White and

Pearson that the robber was the Appellant. Ultimately, the group went back to the store. After

Lyons was informed of the robbery, she stated that she had not spoken with the Appellant since that

morning. However, a subsequent review of her cell phone records indicated otherwise.

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On April 23, 2001, the Appellant was indicted for aggravated robbery and attempted first

degree murder. A superseding indictment was returned on April 15, 2002, which charged the

Appellant, along with Larita Lyons, in count 1 with aggravated robbery1 and, in count 2, the

Appellant was charged individually with aggravated assault. After a trial by jury, the Appellant was

found guilty as indicted, and the two counts were thereafter merged into a single conviction for

aggravated robbery. On December 18, 2002, the Appellant was sentenced to thirty years in the

Department of Correction as a range III offender. His motion for new trial was denied, and this

appeal followed.

ANALYSIS

I. Sufficiency of the Evidence

The Appellant contends that the evidence was insufficient to support his conviction for

aggravated robbery, a class B felony. Specifically, he argues that Treece’s “identification of him is

inherently suspect.” The Appellant asserts that Treece’s credibility is suspect based upon the

following rationale:

Treece, who knew the [Appellant] prior to the incident acknowledged that he did not

recognize the robber as the [Appellant] during the robbery, even though he could see

a portion of the robber’s face and the robber spoke to him. Instead, Treece testified

that while he, his co-worker Scott Pearson, and TSU Officer Frank White were

pursuing a man dressed like the robber shortly after the robbery, the man turned his

head for an instant, he (Treece) recognized him as the [Appellant]. . . . The

[Appellant] submits there is reasonable doubt that [Treece] could identify the man

based upon such a brief glimpse from [50 to 60 yards] away.

...

Treece and Pearson’s observations of the robber and attendant circumstances

during the robbery itself also call Treece’s identification into question. Pearson

described the robber as being “light complected,” but acknowledged that he would

not describe the [Appellant] as having a light complexion. Treece described the

weapon used by the robber as a black automatic handgun. Pearson described the gun

as being pewter in color, and testified that the gun was not black.

A jury conviction removes the presumption of innocence with which a defendant is cloaked

and replaces it with one of guilt, so that, on appeal, a convicted defendant has the burden of

demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

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The Appellant and Lyons were tried jointly, and Lyons was convicted of the lesser included offense of robbery.

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In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this

court to revisit questions of witness credibility on appeal, that function being within the province of

the trier of fact. State v. Holder, 15 S.W.3d 905, 911 (Tenn. 1999); State v. Burlison, 868 S.W.2d

713, 719 (Tenn. Crim. App. 1993). Instead, the Appellant must establish that the evidence presented

at trial was so deficient that no reasonable trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Moreover, the State

is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may

be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). These rules are applicable

to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of

both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990).

As indicted, aggravated robbery is defined as robbery accomplished with a deadly weapon

or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly

weapon. Tenn Code Ann. § 39-13-402(a)(1) (2003). Robbery is defined as “the intentional or

knowing theft of property from the person of another by violence or putting the person in fear.”

Tenn. Code Ann. § 39-13-401(a) (2003).

In this case, the Appellant’s sufficiency argument is based upon the credibility of the victim,

who was the only witness to identify the Appellant as the robber. The credible testimony of one

identification witness is sufficient to support a conviction if the witness viewed the accused under

such circumstances as would permit a positive identification to be made. State v. Strickland, 885

S.W.2d 85, 87 (Tenn. Crim. App. 1993). Inconsistency, inaccuracy, and omissions in the description

of a defendant by a witness who is otherwise able to positively identify the defendant are questions

for the jury to consider in determining the weight to be given the testimony. State v. Radley, 29

S.W.3d 532, 537 (Tenn. Crim. App. 1999), perm. to appeal denied, (Tenn. 1999). Further, although

inconsistencies or inaccuracies may make the witness a less credible witness, the jury's verdict will

not be disturbed unless the inaccuracies or inconsistencies are so improbable or unsatisfactory as to

create a reasonable doubt of the Appellant's guilt. Id. The verdict of the jury in this case is

supported by the evidence. The positive identification testimony of the witness, Steven Treece,

sufficiently supports the Appellant's conviction; his testimony is not so improbable or unsatisfactory

as to create a reasonable doubt of the Appellant's guilt.

II. Sentencing

The Appellant argues that the thirty-year sentence as imposed by the trial court was

excessive. He contends that the trial court misapplied “at least four” enhancement factors. When

an accused challenges the length, range, or the manner of service of a sentence, this court has a duty

to conduct a de novo review of the sentence with a presumption that the determinations made by the

trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003); State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). This presumption is “conditioned upon the affirmative showing in the record that the

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trial court considered the sentencing principles and all relevant facts and circumstances.” Ashby, 823

S.W.2d at 169. When conducting a de novo review of a sentence, this court must consider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the pre-sentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives, if so eligible; (d) the nature and

characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors;

(f) any statement that the Appellant made on his own behalf; and (g) the potential or lack of potential

for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102, -103, -210 (2003); Ashby, 823 S.W.2d

at 168. Furthermore, we emphasize that the Appellant bears the burden of showing that the sentence

is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

In determining the Appellant’s sentence, the trial court considered five enhancement factors:

(2) The Appellant had a previous history of criminal convictions or criminal behavior in addition to

those necessary to establish the appropriate range; (3) The Appellant was a leader in the commission

of the offense; (7) The amount of property taken from the victim was particularly great; (9) The

Appellant had a previous history of unwillingness to comply with the conditions of a sentence

involving release in the community; and (14) The felony was committed while on release status from

a prior felony conviction. Tenn. Code Ann. § 40-35-114(2), (3), (7), (9), (14) (2003). Of the five,

the trial court gave no weight to factor (7)2 and great weight to factors (2), (9), and (14).

The Appellant submits that enhancement factor (2), a previous history of criminal convictions

or criminal behavior in addition to those necessary to establish the appropriate range, was

inapplicable under the facts of this case. Specifically, he argues that:

The [Appellant] was sentenced as a Range III, persistent offender. All five

(5) of his prior felony convictions, for three (3) Class C felonies and two (2) Class

D felonies, were necessary to sentence him as a Range III persistent offender under

T.C.A. §40-35-107(a)(1). The [Appellant’s] remaining convictions are for the

misdemeanor offenses of evading arrest, resisting a stop, driving with a suspended

license, simple assault, and simple possession of drugs. The [Appellant] submits that

his prior misdemeanor record, while not insignificant, is not so extensive as to

constitute “a previous history of criminal convictions or criminal behavior” under

§40-35-114(2). Alternatively, the [Appellant] contends that even if this Court finds

§40-35-114(2) to be applicable, the factor is entitled to little weight.

The trial court, in applying this factor, made the following findings:

Clearly, all his felony convictions are used up to make his range of

punishment; however, we have quite a few other things that I can look at, even

though they may be misdemeanors, they are not all just minor misdemeanors. We

have evading arrest, resisting arrest, driving without a drivers license. We have

2

Apparently, because the trial court gave factor (7) no weight, the Appellant does not challenge its application;

thus, review of this factor is unnecessary.

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weapons offenses, driver license, assault, which is an 11/29 sentence. Again, driving

on no driver’s license. Then we have a possession of drugs which was 11/29, and

then the criminal convictions in 96-D-1976.

All right, so all those would make him, factor number two apply. In addition

to that, I think I can also consider the fact that he was in possession of a weapon as

a convicted felon which is separate and apart from the fact that the gun was used to

make the aggravated robbery, he is a convicted felon who is carrying around a

weapon so that is an issue that I can consider also, so therefore, factor number two

applies.

While misdemeanor convictions do not generally carry as much weight as felony convictions, the

Appellant’s history of misdemeanor convictions is extensive. The Appellant has been convicted of

thirteen separate misdemeanor offenses, including evading arrest, resisting arrest, weapons offenses,

assault, possession of drugs, and multiple driving offenses. Furthermore, as noted by the trial court,

the Appellant’s criminal behavior, in connection with this offense, includes the carrying of a weapon.

Pursuant to Tennessee Code Annotated § 39-17-1307 (2003), the Appellant, a convicted felon, was

prohibited from possessing a weapon. Such criminal history and behavior adequately supports

enhancement factor (2).

The Appellant argues that enhancement factor (3) should not have been applied because his

co-defendant, not he, was the leader in the offense. This court has held that “enhancement for being

a leader in the commission of an offense does not require that the Appellant be the sole leader but

only that he be ‘a’ leader” in the commission of the offense. State v. Hicks, 868 S.W.2d 729, 731

(Tenn. Crim. App. 1993) (citation omitted). As noted by the trial court, the Appellant was “the one

who actually pulled the gun, made Mr. Treece get back in the elevator, pointed it at him such that

Mr. Treece thought that his life was over[.]” While the co-defendant led the preparation, the

Appellant clearly led the perpetration. Id. at 731. Based upon these facts, we find the Appellant was

a leader in the commission of these offenses and, therefore, application of enhancement factor (3)

was proper.

The trial court also applied enhancement factor (9), finding that the Appellant had a previous

history of unwillingness to comply with the conditions of a sentence involving release in the

community. The Appellant contends that application of this factor was improper because:

The presentence report in this case reflects that the [Appellant] was convicted of

driving on a suspended license in 1997, and that the ultimate disposition of this case

was “probation revoked, TS, $50 fine.” The record does not establish that the

[Appellant] was ever given or granted a suspended sentence, and the State made no

effort to document that the [Appellant] was ever placed on probation, or had his

probation revoked in that case.

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The Appellant’s argument is misplaced. As previously noted, the trial court was required to consider

the information in the presentence report. Tenn. Code Ann. § 40-35-210(b)(2). Moreover, the

Appellant entered no objection to the admission of the report. The presentence report reflects that

the Appellant was convicted of assault on June 25, 1997, and was placed on probation for eleven

months and twenty-nine days following suspension of the sentence. On November 1, 1997, the

Appellant was arrested for driving on a suspended license, for which he was convicted on May 14,

1998. The sentence imposed was “probation revoked, TS, $50 fine.” Accordingly, we conclude that

the information within the presentence report was properly utilized to enhance the sentence.

Application of enhancement factor (9) was proper.

Regarding enhancement factor (14), the felony was committed while on release status from

a prior felony conviction, the Appellant argues that:

[T]here is insufficient proof in the record to support a finding that he was on parole

or probation at the time of the offense[.] . . . Nothing in the presentence report

establishes that the Appellant was on parole or probation at the time of the

commission of the offense in this case. . . . Absent some specific proof that he was

on parole at the time of the commission of the offense, the [Appellant] submits that

the trial court erred in applying §40-35-114(14).

The trial court based its application of this factor upon the following findings:

Factor number 14, I understand what you are saying, Ms. Lawson, there is no

proof in the record, but there is proof in the record, and that is if you look at his

convictions in the two, in 98-B-1228, those events occurred on 12/23 of ‘97, so even

if he is in jail from 12/29/97 to when this robbery took place, which is 12/6 of [‘00],

so you’ve got right at three years. There is no way you can serve a five-year

sentence, even all the kind of credit, within that period of time, so he is either on

parole or probation, given the facts of the other offenses that occurred in ‘97, these

occurred in 2000. A three-year time span, his sentence was five years. He’s got to

be on some sort of release.

Again, we note that the Appellant did not object to the admission of the presentence report,

and the court was required to consider the information contained therein. The presentence report and

the copies of the judgment of conviction forms received at the sentencing hearing established that

the Appellant was arrested on December 1, 1997, and charged with aggravated robbery and

especially aggravated robbery. On April 1, 1998, he was again charged with a separate offense,

which is not defined. As a result of these three charges, the Appellant, on October 15, 1998, pled

guilty to two counts of facilitation of aggravated robbery and one count of attempted aggravated

robbery and received a sentence of five years in the Davidson County Workhouse. The trial court

reasoned that, even if the Appellant was in jail from December of 1997 and released just prior to

commission of the present offense in December of 2000, only three years had passed, and it was

impossible for the Appellant to have served his entire five-year sentence within that time-span. The

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trial court’s logic is sound that the Appellant was on release status at the time the offense was

committed. State v. Elton Bowers, No. 02C091-9308-CR-00180 (Tenn. Crim. App. at Jackson, Oct.

12, 1994). Accordingly, we conclude that Appellant’s release status was properly used to enhance

his sentence.

The application of enhancement factors (2), (3), (9), and (14) are sufficient to justify the

imposition of the maximum thirty-year sentence. No mitigating factors were found by the court, and

a review of the record does not reveal any that should have been applied. When there are

enhancement factors and no mitigating factors, there is no presumptive sentence and the court may

sentence above the minimum in the range. Tenn. Code. Ann. § 40-35-210(d). The Appellant was

convicted of aggravated robbery, a class B felony, which carries a range of twenty to thirty years for

those sentenced as persistent offender. See Tenn. Code Ann. § 40-35-112(c) (2003). Of particular

weight in this case is the Appellant's prior criminal history, his previous unwillingness to comply

with the conditions of a sentence involving release in the community, and the fact that he was on

release at the time the instant offense was committed. Under these circumstances, the trial court was

clearly justified in imposing a sentence of thirty years for aggravated robbery. The Appellant’s

sentencing issues are without merit.

CONCLUSION

Based upon the foregoing, we find that the evidence presented at trial was sufficient to

support the Appellant’s conviction for aggravated robbery beyond a reasonable doubt. Furthermore,

the thirty-year sentence imposed by the trial court was not excessive as to length. Accordingly, the

judgment of the Davidson County Criminal Court is affirmed.

___________________________________

DAVID G. HAYES, JUDGE

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