State of Tennessee v. Christopher Lee Cunningham and James Cleo Hardin

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 3, 2015

STATE OF TENNESSEE v. CHRISTOPHER LEE CUNNINGHAM AND

JAMES CLEO HARDIN

Appeal from the Circuit Court for Madison County

No. 13-243 Donald H. Allen, Judge

No. W2014-00230-CCA-R3-CD (C) - Filed March 24, 2015

The Defendant-Appellants, Christopher Lee Cunningham and James Cleo Hardin, were

jointly convicted by a Madison County jury of one count of aggravated burglary and two

counts of aggravated robbery. The trial court sentenced each defendant to an effective

sentence of 22 years’ confinement. On appeal, the Defendants argue that (1) the evidence

is insufficient to sustain their convictions for aggravated burglary and aggravated

robbery, and (2) the trial court abused its discretion by imposing consecutive sentences.

Upon review, we affirm the judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ALAN E. GLENN, JJ., joined.

Gregory D. Gookin, Assistant Public Defender, and J. Colin Morris, Jackson, Tennessee,

for the Defendant-Appellants, Christopher Lee Cunningham and James Cleo Hardin.

Robert E. Cooper, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; Jerry Woodall, District Attorney General; and Shaun Brown, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

On January 12, 2013, Dr. Allyson Anyanwu and her contractor, Lorenzo Amador,

were robbed at gunpoint inside of her Jackson home. Dr. Anyanwu and her husband had

recently purchased the house and begun doing minor renovations to it. The couple hired

Mr. Amador and his team to help with the renovations. On the day of the incident, Dr.

Anyanwu came over to the house to do some work while Mr. Amador and several other

workers were at the house. By about 5:30 p.m., all of the workers had left the house

except for Mr. Amador.

Dr. Anyanwu was working in the kitchen when she turned to see Mr. Amador

being led into the kitchen at gunpoint by two African American men. Accordingly to Dr.

Anyanwu, both men had handguns and were wearing hooded sweatshirts with the hoods

pulled up on their heads. She insisted that the gunmen’s faces were not covered,

although Mr. Amador testified that the men were wearing masks and he could only see

their eyes. Dr. Anyanwu recalled that Mr. Amador was very frightened when he entered

the kitchen and had a hard time standing still as directed by the gunmen. The gunmen

appeared agitated by his behavior and kept holding their guns to his head and saying, “I

will kill you.” Because the gunmen “had their complete focus on [Mr. Amador]” at this

time, Dr. Anyanwu was able to “take [her] time and look at each one of [the gunmen] and

look at their guns.” She testified that her kitchen was well-lit during the robbery, and she

was able to clearly see the gunmen’s faces. The darker-skinned gunman, later identified

as Defendant Hardin, told Mr. Amador to give him his phone and wallet. After Mr.

Amador complied, Defendant Hardin approached Dr. Anyanwu and said, “And what

about you? What have you got?” He took her phone and put his gun inside of her shirt

against her chest. He then ordered Dr. Anyanwu and Mr. Amador to kneel on the floor,

and the two men left. On the way out of the house, Defendant Hardin took Dr.

Anyanwu’s purse that was on the kitchen counter. In the purse, Dr. Anyanwu had

another cell phone, her ID, keys, some personal items, and $160 to $200 cash.

After the robbery, Dr. Anyanwu called the police from a neighbor’s house. The

police responded to the scene and interviewed the victims. They searched for the two

gunmen that evening but were unable to find them. A few days later, Mr. Amador

recognized one of the gunmen walking down the street and called the police. The police

detained Defendants Cunningham and Hardin, and Mr. Amador identified Defendant

Cunningham as one of the gunmen. He was unable to say with certainty whether

Defendant Hardin was the other gunman. Several days later, police compiled a

photographic lineup that included a photograph depicting Defendant Hardin. Dr.

Anyanwu identified Defendant Hardin from the lineup as one of the gunmen. At trial,

Dr. Anyanwu identified both Defendants as the two gunmen who robbed her and Mr.

Amador. She was confident in her identification, stating at trial, “There is like no doubt

in my mind who these people are.”

Following diliberations, the jury convicted the Defendants as charged in the

indictments of one count of aggravated burglary and two counts of aggravated robbery.

At the November 18, 2013 sentencing hearing, the trial court sentenced the Defendants to

11 years’ confinement for each robbery count and five years’ confinement for aggravated

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burglary. The court ordered that the aggravated robbery sentences run consecutively to

one another and the aggravated burglarly sentence run concurrent with the aggravated

robbery sentences for an effective sentence of 22 years’ confinement for each Defendant.

Defendant Cunningham filed a motion for new trial or modification of sentence on

December 16, 2013, which was denied by the trial court on January 16, 2014. He filed a

timely notice of appeal on February 6, 2014. Defendant Hardin filed a motion for new

trial on December 2, 2013, which was denied by the trial court on July 24, 2014. He filed

a timely notice of appeal on May 28, 2014.

ANALYSIS

On appeal, the Defendants argue that the evidence is insufficient to sustain their

convictions for aggravated burglary and aggravated robbery and that the trial court erred

in imposing partial consecutive sentences. The State responds that the evidence is

sufficient to support the convictions, and the trial court acted within its discretion in

sentencing the Defendants to effective 22-year sentences. Upon review, we agree with

the State.

I. Sufficiency of the Evidence. In challenging the sufficiency of the evidence

supporting their convictions, the Defendants do not contest the evidence establishing that

an aggravated burglary and aggravated robbery took place; rather, they allege that the

State failed to establish their identities as the perpetrators of these offenses. Both

highlight the fact that Mr. Amador testified that the gunmen wore masks during the

robbery while Dr. Anyanwu testified that the gunmen did not wear masks. Additionally,

Defendant Cunningham argues that the proof is insufficient to support his conviction

because Dr. Anyanwu did not identify Defendant Cunningham as one of the perpetrators

until trial.

It is well-established that when considering the sufficiency of the evidence on

appeal, the State is entitled to the strongest legitimate view of the evidence and all

reasonable inferences that may be drawn from that evidence. State v. Davis, 354 S.W.3d

718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).

When a defendant challenges the sufficiency of the evidence, the standard of review

applied by this court is “whether, after reviewing 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 (1979).

Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states, “Findings of

guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence

is insufficient to support the finding by the trier of fact of guilt beyond a reasonable

doubt.” The jury as the trier of fact must evaluate the credibility of the witnesses,

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determine the weight given to witnesses’ testimony, and reconcile all conflicts in the

evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State,

575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). When considering the sufficiency of the

evidence, this court shall not reweigh the evidence or substitute its inferences for those

drawn by the trier of fact. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2009).

“Because a verdict of guilt removes the presumption of innocence and raises a

presumption of guilt, the criminal defendant bears the burden on appeal of showing that

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009).

“The identity of the perpetrator is an essential element of any crime.” State v.

Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793

(Tenn. 1975)). The State has the burden of proving the identity of the defendant as the

perpetrator beyond a reasonable doubt. State v. Cribbs, 967 S.W.2d 773, 779 (Tenn.

1998). The identity of the defendant as the perpetrator may be established by direct

evidence, circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d

at 793. “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. Radley, 29 S.W.3d 532, 537 (Tenn. Crim.

App. 1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)).

Further, “the testimony of a victim, by itself, is sufficient to support a conviction.”

Strickland, 885 S.W.2d at 87 (citing State v. Williams, 623 S.W.2d 118, 120 (Tenn.

Crim. App. 1981)). “Inconsistency, inaccuracy, and omissions in the description of the

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

for the jury to consider in determining the weight to be given to the testimony.” Id.

(citing State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990)). Because

questions of credibility are matters for the jury to resolve, this court will not disturb the

jury’s verdict “unless the inaccuracies or inconsistencies are so improbable or so

unsatisfactory as to create a reasonable doubt of the [defendant]’s guilt.” Id.

In the case sub judice, Dr. Anyanwu positively identified both Defendants at trial.

She testified that she was able to “take her time” and look at each gunman during the

robbery while his attention was focused on Mr. Amador, and she was adamant that the

Defendants were the men who robbed her. This testimony, alone, is sufficient to sustain

the convictions for both Defendants. See Strickland, 885 S.W.2d at 87. Although Mr.

Amador’s testimony that the gunmen were wearing masks during the robbery conflicted

with Dr. Anyanwu’s testimony, this fact does not undermine the jury’s verdict. The

discrepancy in the testimony was fully presented to the jury, and the jury resolved any

inconsistencies or credibility issues with their verdict, as was their prerogative. See

Campbell, 245 S.W.3d at 335. We will not reweigh or reevaluate the evidence.

Dorantes, 331 S.W.3d at 379. The Defendants are not entitled to relief.

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II. Sentencing. The Defendants also challenge the trial court’s imposition of

effective 22-year sentences of confinement. The Defendants do not attack the length of

each sentence imposed but assert that the trial court abused its discretion in imposing

partial consecutive sentences. The Defendants argue that the effective 22-year sentence

is excessive and that concurrent sentences on all counts would have adequately fulfilled

the purposes and principles of sentencing.

Where a defendant is convicted of one or more offenses, the trial court has

discretion to decide whether the sentences shall be served concurrently or consecutively.

T.C.A. ' 40-35-115(a) (2006). The Tennessee Supreme Court has held, “[T]he abuse of

discretion standard, accompanied by a presumption of reasonableness, applies to

consecutive sentencing determinations.” State v. Pollard, 432 S.W.3d 851, 860 (Tenn.

2013). A trial court may order multiple offenses to be served consecutively if it finds by

a preponderance of the evidence that a defendant fits into at least one of seven categories

enumerated in code section 40-35-115(b). Those categories include:

(1) The defendant is a professional criminal who has knowingly devoted

the defendant’s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is

extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by

a competent psychiatrist who concludes as a result of an investigation prior

to sentencing that the defendant’s criminal conduct has been characterized

by a pattern of repetitive or compulsive behavior with heedless indifference

to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or

no regard for human life and no hesitation about committing a crime in

which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the defendant and

victim or victims, the time span of defendant’s undetected sexual activity,

the nature and scope of the sexual acts and the extent of the residual,

physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on

probation; or

(7) The defendant is sentenced for criminal contempt.

T.C.A. ' 40-35-115(b) (2006). An order of consecutive sentencing must be “justly

deserved in relation to the seriousness of the offense.” T.C.A. ' 40-35-102(1); see State

v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). In addition, the length of a consecutive

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sentence must be “no greater than that deserved for the offense committed.” T.C.A. ' 40-

35-103(2); see Imfeld, 70 S.W.3d at 708. This court must give “deference to the trial

court’s exercise of its discretionary authority to impose consecutive sentences if it has

provided reasons on the record establishing at least one of the seven grounds listed in

Tennessee Code Annotated section 40-35-115(b).” Pollard, 432 S.W.3d at 861.

In the instant case, the trial court imposed consecutive sentences based upon its

finding that both Defendants were on probation at the time that they comitted these

offenses. See T.C.A. § 40-35-115(b)(6). The court emphasized that as a condition of that

probation, both Defendants were ordered not to possess any type of firearm and noted

that “not only were they violating probation by committing aggravated robbery . . . [and]

aggravated burglary, they were also violating probation in committing a federal offense

by being in possession of a gun[.]” The court discussed the serious nature of the offenses

and found that the “aggregate sentence of 22 years reasonably relates to the offenses for

which the [D]efendants have been convicted and especially in light of the prior criminal

history [of each Defendant][.]” As noted, the existence of only one factor is sufficient to

impose consecutive sentencing. See T.C.A. § 40-35-115(b); see Pollard, 423 S.W.3d at

862 (“Any one of these grounds is a sufficient basis for the imposition of consecutive

sentences.”) (citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). The record

fully supports the trial court’s finding in this regard, and we discern no abuse of

discretion by the trial court in imposing partial consecutive sentencing. The Defendants

are not entitled to relief.

CONCLUSION

Based on the foregoing authorities and analysis, we affirm the judgments of the

trial court.

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CAMILLE R. MCMULLEN, JUDGE

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