State of Tennessee v. Gerald Stephen Cassell and Brian James Beckwith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 3, 2015

STATE OF TENNESSEE v. GERALD STEPHEN CASSELL AND BRIAN

JAMES BECKWITH

Appeal from the Circuit Court for Hardin County

No. 9649 C. Creed McGinley, Judge

No. W2013-02368-CCA-R3-CD - Filed May 22, 2015

The Defendant-Appellants, Gerald Stephen Cassell and Brian James Beckwith, were

jointly convicted by a Hardin County jury of one count of aggravated robbery, a Class B

felony. See T.C.A. § 39-13-402. The trial court ordered each Defendant to serve twelve

years in the Tennessee Department of Correction, consecutive to their unserved sentences

in Florida. In this consolidated appeal, the Defendants argue that the trial court erred in

denying their motion to suppress a witness‟s pretrial and trial identifications of them, the

evidence is insufficient to sustain their aggravated robbery conviction, and the trial court

erred in sentencing them. In addition, Cassell argues that the trial court erred in

admitting witness testimony regarding the contents of a WalMart surveillance video.

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

Tenn. R. App. P. 3 Appeal 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.

Guy T. Wilkinson (on appeal), District Public Defender, Camden, Tennessee; and

Benjamin S. Harmon (at trial), Savannah, Tennessee, for the Defendant-Appellant,

Gerald Stephen Cassell.

Joe L. Brown, Savannah, Tennessee, for the Defendant-Appellant, Brian James

Beckwith.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;

Hansel J. McCadams, District Attorney General; and Ed N. McDaniel, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

This appeal stems from the robbery of Livingston‟s Jewelry in Savannah,

Tennessee by two individuals on the afternoon of April 16, 2012. The Hardin County

Grand Jury jointly indicted Cassell and Beckwith after they were implicated in the

robbery. Prior to trial, both Defendants filed motions to suppress identification evidence

and to preclude eyewitness testimony regarding identification.

Suppression Hearing. William Bell testified that he was previously a police

officer in Maryland for about twenty-four years before retiring and moving to Hardin

County, Tennessee. On April 16, 2012, he and his eleven-year-old daughter were in

Livingston‟s Jewelry when an armed robbery occurred. He said that he “got a good look”

at one of the men whose face was uncovered when the man entered the store. Bell further

stated that he “got a very good look” at the other man who first entered the store with his

face covered up to the nose, but whose face was later uncovered when he left.

As the men were leaving, one man asked Bell and store owner Randy Livingston

for their car keys. Bell then obtained a handgun from Livingston and pursued the men.

Bell said that he recognized the men from the jewelry store but not because of

photographs that had been shown to him by the police. Bell stated that he observed the

two men as they entered the store, while they were in the store, and when they left. He

identified the Defendants as the men who had robbed the jewelry store.

During cross-examination by Cassell‟s attorney, Bell said that he was involved in

many robbery investigations while he was a police officer in Maryland. Prior to this

incident, he had been in Livingston‟s Jewelry once before. On the day of the robbery, he

and his daughter were in the back of the store near the cash register. Bell said that it was

immediately apparent that the men were robbing the store because the man with the

covered face had a gun in his hand and the other man had a bag. Bell said that the two

men were in the store for about five minutes, and he observed them the entire time. He

testified that he stared directly at both men because they kept ordering him to keep his

hands on his head.

On the day of the incident, Bell provided a statement to police and was shown

some photographs. He could not recall during the hearing whether he identified both

individuals from a photographic lineup on the day of the robbery or on the following day.

He agreed that the Savannah police showed him a still photograph from a Walmart

surveillance video of just the two suspects, but he was unsure whether he was shown that

picture before or after the photographic lineup. When he was shown the Walmart picture,

the police asked him if he could identify the men. The police did not tell him that the two

men in the photograph were the robbery suspects. He denied that he saw pictures of the

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Defendants on television or in the newspaper. Bell believed that both Defendants were

included in the same photographic lineup. He said he could identify the Defendants‟

faces, but he did not know their names.

During cross-examination by Beckwith‟s attorney, Bell said that he could see the

suspects through both his direct and peripheral vision. He stated that the unarmed man

approached him several times and told him to keep his hands on his head. He said that

the other man did not have his face covered with a shirt the entire time, and he observed

the man‟s face multiple times while the man was near the safe. Bell agreed that he had

identified pictures two and five from a lineup of six photographs with 100 percent

certainty. He testified that he did not pay attention to the background of the pictures in

the lineup.

After the State‟s proof, Cassell‟s attorney called Officer T.J. Barker, a twenty-one

year veteran of the Savannah Police Department. Officer Barker investigated the instant

robbery at Livingston‟s Jewelry, interviewed Bell and Livingston, and spoke to witnesses

who saw a small red car leave the scene. On April 17, he took a statement from Bell at

the police department, showed him surveillance photographs from WalMart, and asked

Bell if he recognized the two men. The police had obtained photographs from Walmart

because the robbery suspects left duct tape at the crime scene, and some duct tape had

been stolen from Walmart that day. These still photographs from Walmart were released

to the media and depicted the Defendants entering the store as well as their clothing and

vehicle.

Officer Barker acknowledged that Bell returned to the police station on April 23,

2012, to view a lineup of six photographs. He agreed that Bell had already viewed the

Walmart surveillance photographs of the two Defendants. Officer Barker compiled the

lineup based on the description of the robbery suspects, and he used photographs of men

with very short dark hair as well as men with light hair. While compiling the lineup, he

did not notice a difference between the backgrounds of the two suspects and the other

four men. Officer Barker thought the photographs were “pretty close,” and he advised

the witnesses that the lineup may or may not include photographs of the guilty parties.

He agreed that Bell identified only one suspect on the day of the robbery and then

identified both men the following day based on the Walmart photographs. He said that

the lineup consisted of color photographs.

Following the hearing, the trial court made oral findings and denied the motion to

suppress. The court concluded that the identification procedure was not unduly

suggestive and that the identification was reliable under the totality of the circumstances.

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Trial. Randy Livingston testified that he had owned Livingston‟s Jewelry in

downtown Savannah, Tennessee for the past thirty-five years. On April 16, 2012, he was

estimating the cost of a ring repair for William Bell and Bell‟s minor daughter when two

men entered the store. The man who was armed with a gun said, “„This is a robbery.

Everybody on the floor.‟” After Bell and his daughter were on the ground, the unarmed

man began removing diamond jewelry from the floor cases, and the armed man

demanded that Livingston open the safe. Livingston complied and gave the man a money

clip with $200. The man also took some scrap gold from the safe and about $700 from

the cash register. The robbers continued to remove items from behind the jewelry

counters and placed them in a canvas tent bag. Livingston estimated that the men were in

the store for five minutes.

Livingston stated that he had never experienced a robbery at his business before

and that he had installed video surveillance after the incident. He cooperated with the

robbers because he was concerned for the safety of his customers. When the robbers left,

Bell identified himself as a retired police officer and asked for a firearm, which

Livingston gave him. Livingston immediately called the police as Bell chased after the

men. He said that Bell later returned with the robbers‟ bag. Livingston valued the

jewelry inside the bag to be worth almost $27,000. However, he never recovered any of

the cash or three bracelets valued at around $560. He identified the Defendants in court

as the men who, “[w]ithout a doubt,” robbed his store on April 16, 2012.

During cross-examination by Cassell‟s attorney, Livingston said that the robbers

produced “an automatic weapon” as soon as they entered the store. He did not believe

that the men wore gloves, though he stated that he paid more attention to the gun and to

their faces than to their clothing. He said that he was not on the floor for long because

the men ordered him to open the safe and the cash register. Livingston stated that the two

men had close-cropped hair and were about five feet and nine inches tall. He said that the

armed man was wearing a cap and had his T-shirt pulled up over his face, but his face

was only briefly covered. The unarmed man was wearing sunglasses. He testified that

he “got a very good look at them.” Livingston agreed that he provided a police statement

on April 16 but stated that he was testifying from firsthand experience. He told the police

that he was not certain about clothing but that he paid attention to the facial structure of

the men. He acknowledged that he might have initially told the dispatcher that one of the

men had a bandana or handkerchief over his face, but he testified that the man‟s face was

covered with a pulled-up T-shirt. Livingston said that he never identified the robbers

from any pictures, though he identified them at a preliminary hearing. He agreed that he

saw Walmart photographs of the Defendants. During cross-examination by Beckwith‟s

attorney, Livingston testified that the preliminary hearing occurred a year ago and that

only Cassell was present.

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William Bell provided the same testimony as he did at the hearing on the motion

to suppress. In addition, he said that he began his law enforcement career as a patrol

officer and spent several years as a detective, a K-9 officer, and an undercover narcotics

officer. He agreed that his training enabled him to recognize individuals better. He

stated that the armed robbery occurred at around 3:40 p.m. on April 16, 2012, because he

had just picked his daughter up from school, and they went directly to Livingston‟s

Jewelry. The man who “was holding a semi-automatic stainless steel revolver” ordered

Livingston to open the safe, and the other man took pieces of jewelry from the cases and

put them into a blue bag. Bell could clearly see the unarmed man because his face was

uncovered and because they spoke to each other after the man repeatedly asked him to

keep his hands on his head. The armed man had his lower face covered to the tip of his

nose when he entered the store, but Bell could clearly see the man‟s face as he left

because his face was uncovered. He said he “made a lot of eye contact” with the armed

man because he was concerned with how the robbery would end. Bell concentrated on

the facial features of the suspects due to his law enforcement training and because he

feared for the safety of his young daughter. He stated, “[I]f someone points a weapon at

my eleven-year-old daughter, it‟s a face I‟m going to remember.” He identified the

Defendants in court as the perpetrators of the robbery and said he had “absolutely” no

doubt in his mind.

Bell further testified that when he confronted the unarmed man with the bag

outside of the store, the suspect ran away. The man then slipped and dropped his bag and

continued running past some restaurants. After the robbers disappeared from view, Bell

recovered the bag and returned to the store. On the evening of the robbery, the police

showed him some photographs. The following day, the police showed him a picture of

two men entering Walmart and asked if he could identify them. Bell said he recognized

the men in the picture as the robbery suspects. The Walmart photograph was time-

stamped “4/16/2012 14:14:37” and was admitted into evidence.

During cross-examination by Cassell‟s attorney, Bell agreed that he told police

that the perpetrators were “white males, mid-twenties, thin build[.]” He did not recall

describing the robbers‟ hair or clothing. He disagreed that his description was vague

because articles of clothing could be discarded or altered. Bell denied that he had

difficulty seeing the robbery suspects while he was kneeling on the floor. He agreed that

the police showed him Walmart surveillance photographs of the Defendants. However,

he disagreed that the police asked him, “Are these the guys?” Bell acknowledged that he

was shown a photographic lineup of six individuals at a later date. During cross-

examination by Beckwith‟s attorney, Bell stated that he observed the man whose face

was no longer covered for about fifteen seconds. He believed that he first identified the

other suspect during the photographic lineup. He was only aware of two robbery

suspects.

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Christy Shelby and Kamela Hill were parked outside of Livingston‟s on the day of

the offense. Each witness testified that at around 3:30 or 4:00 p.m. they observed two

men run out of the jewelry store. Shelby saw one man with the duffle bag run into the

middle of the road and then drop the bag there. She then observed another man exit the

store with a gun at his side. Shelby did not recognize the two men at the time, but she

later saw their picture in the newspaper and identified them as the individuals who had

robbed the jewelry store. Hill observed that the men were dressed oddly for a hot day

and thought to herself, “[H]e looks just like somebody who would be a robber on TV.”

She noticed that one man had a large, dark duffle bag. She watched as he darted through

the parked cars and crossed the street. Hill then saw Bell exit the store and yell across the

street. When she turned around, she saw the bag in the middle of the road and the

suspects leaving through the alley. She later saw pictures of the two men in the

newspaper.

On cross-examination, Shelby stated that the two men who exited Livingston‟s

Jewelry were running quickly. She did not observe any individual looking into the

window of a vehicle. She agreed that the third man who left the store was also running.

Shelby did not recall seeing the two suspects with a gun, though she did observe the third

man with a gun at his side. In her police statement from the day of the robbery, she

described the men as wearing a hat, sunglasses, and long sleeves. She saw several

photographs at the time, but they were not pictures from Walmart. Shelby did not know

why her police statement was dated April 18, 2012. Hill said that she did not notice the

first suspect, but she did see the second man walking quickly. She said that he was

definitely wearing a hat and sunglasses. She stated that the men were about to run across

the street when Bell yelled for them to stop. She agreed that the newspaper picture was

next to an article about the robbery suspects.

Jamie Franks was also parked near Livingston‟s Jewelry on the day of the offense.

He testifed that while he was in his truck, he observed two suspicious men running from

behind the building. They appeared to be out-of-breath and paused for a few seconds to

speak to each other. Franks observed one of the men remove his hat and throw it on the

ground. They fled the scene in a red Pontiac Grand Am that was parked there. The

vehicle did not have a Tennessee license plate. Franks heard sirens and saw a police car

drive by, but he did not know what had happened. On cross-examination, Franks said

that the two men were about twenty yards from his truck. He did not recall seeing either

man wearing any sunglasses or bandanas. He said that the men were in their mid-

twenties and were about five feet and eight or ten inches tall. He did not clearly see their

faces.

Investigator Timmy Keen of the Savannah Police Department testified that he

responded to an armed robbery call at Livingston‟s Jewelry on April 16, 2012. After he

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arrived at the scene, Bell provided him with a blue tent bag that contained jewelry and

other items, including two rolls of duct tape. On cross-examination, Investigator Keen

said that on the day of the robbery, he secured the crime scene, interviewed some

witnesses, and contacted Walmart. The police obtained formal statements from witnesses

on the following day.

In a bench conference, Cassell‟s attorney objected to any testimony from Walmart

employee Jeanie Coffman regarding the contents of a surveillance video from the store,

asserting a violation of the best evidence rule. The trial court overruled the objection and

held that the defense could renew the objection during the witness‟s testimony. Jeanie

Coffman, the loss prevention manager at the Walmart store in Savannah, testified that on

April 16, 2012, Investigator Keen contacted her and asked if the store was missing any

rolls of duct tape. When she advised the police that there were two rolls missing,

Investigator Keen asked her to determine who had taken the tape. Coffman reviewed the

surveillance videos from the store‟s security cameras and created numerous still

photographs from the recordings. She identified photographs from April 16, 2012, of two

individuals in the Walmart parking lot and inside the store. There were also photographs

of a red car in the parking lot, and the earliest photograph was time-stamped “14:12:59,”

or 2:12 p.m. Coffman said that she selected still photographs of these two individuals

because she reviewed the video surveillance and saw them shoplift duct tape. The

Walmart photographs were admitted into evidence as a collective exhibit.

On cross-examination, Coffman conceded that the surveillance photographs did

not include any pictures of duct tape. She said that the duct tape was shown in the video

recording, which was not available at trial. She testified with 100 percent certainty that

the two missing rolls of duct tape from Walmart were the same as the duct tape recovered

from Livingston‟s Jewelry. She said that the duct tape was Gorilla brand and had a

different size, color, and label from the other duct tape that was sold at Walmart.

Coffman filed a police report for the missing duct tape, though the matter was never

prosecuted. She acknowledged that other stores in Savannah might also sell Gorilla

brand duct tape.

Officer T.J. Barker of the Savannah Police Department testified that he became

involved with the robbery investigation on April 17, 2012, because he had the day off on

April 16. He recalled that the police released the Walmart surveillance photograph to the

local media on April 18 or 19. Officer Barker did not learn the names of the two

individuals in the photograph until April 23. At that point, he compiled a photographic

lineup, which was shown to Bell at the police station. He said that Bell identified the two

Defendants as the perpetrators. Officer Barker then issued warrants and entered them

into a national criminal database. Cassell was later apprehended in Toledo, Ohio, and

Beckwith was apprehended in Chicago, Illinois. On cross-examination, Officer Barker

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agreed that he showed the Walmart photograph of the two Defendants to Bell on April

17. On April 23, he asked Bell to review a six-person photographic lineup, and Bell

identified the two Defendants as the robbers. He said he showed a lineup to Bell because

Bell had been in close proximity to the two suspects at the crime scene. Officer Barker

stated that other eyewitnesses had also identified the Defendants as the perpetrators based

on the Walmart surveillance photograph.

Cassell and Beckwith elected not to testify and did not present any proof. Based

on the evidence, the jury convicted them as charged of aggravated robbery.

Sentencing Hearing. At the joint sentencing hearing, the State introduced each of

the Defendants‟ presentence reports into evidence. Both reports included a victim impact

statement from Randy Livingston. Neither the State nor the Defendants called any

witnesses.

Cassell‟s presentence report reflected that he was twenty-five years old at the time

of the robbery and a resident of Florida. His prior record included a robbery conviction

in 2007 in Pinellas County, Florida, when he was twenty years old. According to the

report, Cassell robbed a federal credit union without a weapon, though the money was

later recovered. He was sentenced to serve four years in the Florida Department of

Correction followed by one year of probation. His adult record also included various

drug offenses that were committed when Cassell was nineteen. His juvenile record began

at age thirteen and included offenses such as burglary, possession of a weapon on school

grounds, battery, and possession of drug paraphernalia. The report further stated that

Cassell and Beckwith were cousins.

Beckwith‟s presentence report reflected that he was thirty-three years old at the

time of the robbery in April 2012. In August 2012, he was convicted of being a felon in

possession of a weapon in Cook County, Illinois, after he was apprehended there in May

2012. In 2007, Beckwith was convicted of unarmed robbery in Pinellas County, Florida,

and received a five-year sentence.1 The presentence report also indicated that Beckwith

had periods of incarceration in Florida with multiple infractions during his time in prison.

He was first incarcerated in 1996 in Florida for an armed robbery that occurred when he

was sixteen. Beckwith had been charged as a juvenile for that offense but was later

treated as an adult.

1

Although not specified in the presentence reports, it appears that the Defendants committed the

unarmed robbery in Pinellas County, Florida, together. The offense occurred on February 12, 2007, and

Cassell was convicted in case number 07-03271 while Beckwith was convicted in case number 07-03272.

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At the conclusion of the hearing, the trial court sentenced each Defendant as a

Range I, standard offender to twelve years in the Tennessee Department of Correction

and aligned the sentences consecutively to their prior sentences in Florida. Cassell filed a

motion for new trial, which the trial court denied on January 6, 2014. Beckwith did not

file a motion for new trial. Both Defendants timely appealed the judgments of the trial

court.

ANALYSIS

I. Motion to Suppress. On appeal, Cassell and Beckwith argue that the trial court

should have suppressed William Bell‟s pretrial and in-court identification of them

because the procedure was unduly suggestive and violated their due process rights.

Specifically, the Defendants contend that Bell‟s identification was unreliable because he

identified an unspecified suspect on the day of the robbery, the police showed him a

Walmart photograph of the two Defendants prior to a photographic lineup, and the lineup

included both Defendants in the same array. The Defendants further assert that the lineup

“clearly highlights” them because the other four photographs have a superimposed

diamond and height markings in the background. The State responds that the

photographic identification was not unduly suggestive or unreliable, and the trial court

properly admitted the evidence. We agree with the State.

An appellate court may consider the proof presented at the suppression hearing

and the trial when determining whether the trial court properly denied a motion to

suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). It is well-established

that “a trial court‟s findings of fact in a suppression hearing will be upheld unless the

evidence preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

The Tennessee Supreme Court explained this standard in Odom:

Questions of credibility of the witnesses, the weight and value of the

evidence, and resolution of conflicts in the evidence are matters entrusted to

the trial judge as the trier of fact. The party prevailing in the trial court is

entitled to the strongest legitimate view of the evidence adduced at the

suppression hearing as well as all reasonable and legitimate inferences that

may be drawn from that evidence. So long as the greater weight of the

evidence supports the trial court‟s findings, those findings shall be upheld.

Id. However, this court‟s review of a trial court‟s application of the law to the facts is de

novo with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn.

2001); (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan,

958 S.W.2d 626, 629 (Tenn. 1997)). The defendant bears the burden of showing that the

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evidence preponderates against the trial court‟s findings. Odom, 928 S.W.2d at 23;

Yeargan, 958 S.W.2d at 629.

“To be admissible as evidence, an identification must not have been conducted in

such an impermissibly suggestive manner as to create a substantial likelihood of

irreparable misidentification.” State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998) (citing

Simmons v. United States, 390 U.S. 377 (1968)). “[E]ven if the identification procedure

were unnecessarily suggestive, suppression is only required when the totality of the

circumstances shows that the identification was unreliable.” State v. Scarborough, 300

S.W.3d 717, 729 (Tenn. Crim. App. 2009) (citing Neil v. Biggers, 409 U.S. 188, 198–99

(1972). In Neil v. Biggers, the Court established a two-part analysis that the trial court

must apply in determining the validity of a pre-trial identification. 409 U.S. at 198-99.

First, the trial court must determine whether the identification procedure was unduly

suggestive. Id. at 198. Next, if the trial court determines that the identification was

unduly suggestive, then it must consider whether, under the totality of the circumstances,

the identification procedure was nonetheless reliable. Id. at 199. This court must

consider the following factors in determining the reliability of an identification:

1. the opportunity of the witness to view the criminal at the time

of the crime.

2. the witness‟s degree of attention at the time of the crime.

3. the accuracy of the witness‟s prior description of the criminal.

4. the level of certainty demonstrated by the witness at the

confrontation.

5. the length of time between the crime and the confrontation.

State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998) (quoting Biggers, 409 U.S. at 199); see

State v. Philpott, 882 S.W.2d 394, 400 (Tenn. Crim. App. 1994). In Tennessee, it is

unnecessary to apply the totality of the circumstances test in Biggers to assess the

reliability of the identification if the trial court determines that the identification

procedure was not unduly suggestive. See State v. Butler, 795 S.W.2d 680, 686 (Tenn.

Crim. App. 1990).

The “showup” method involves the presentation of a suspect or a single

photograph of the suspect to a witness. Id. Courts generally condemn the use of a

showup because it is considered to be “inherently suggestive and unfair” to the suspect.

State v. Thomas, 780 S.W.2d 379, 381 (Tenn. Crim. App. 1989). Nevertheless, a showup

is not unnecessarily suggestive when “imperative circumstances necessitate” its use or

when it occurs “as an on-the-scene investigatory procedure shortly after the commission

of the crime.” Id. at 381. This court has explained that a showup, when used as an

investigatory procedure sufficiently proximate in both time and place to the offense, often

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serves the interests of justice. State v. Moore, 596 S.W.2d 841, 844 (Tenn. Crim. App.

1980). It can “„foster[] the desirable objectives of fresh, accurate identification which in

some instances may lead to the immediate release of an innocent suspect and at the same

time enable the police to resume the search for the fleeing culprit while the trail is

fresh.‟” Id. (quoting Bates v. United States, 405 F.2d 1104, 1106 (D.C. Cir. 1968)); see

also Simmons, 390 U.S. at 384-85 (concluding that photographic identification was

justified under the circumstances because the armed bank robbers were still at large, a

serious felony had been committed, law enforcement officials possessed inconclusive

clues which led them to the suspects, and they had to swiftly determine “whether they

were on the right track[.]”). A showup identification, therefore, violates due process only

when it is unnecessarily suggestive and unreliable.

Physical and photographic lineups are the preferred methods of identification.

Cribbs, 967 S.W.2d at 794. The Tennessee Supreme Court has held that photographic

lineups are admissible unless they are unduly suggestive:

Photographs contained in a photographic array do not have to mirror the

accused. Instead, the law simply requires that the police refrain from

“suggestive identification procedures.” Neil v. Biggers, 409 U.S. 188, 93

S. Ct. 375, 34 L. Ed. 2d 401 (1972). Thus, a photographic identification is

admissible unless, based upon the totality of the circumstances, “the

confrontation conducted . . . was so unnecessarily suggestive and conducive

to irreparable mistaken identification that [the accused] was denied due

process of law.” Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967,

1972, 18 L. Ed. 2d 1199, 1206 (1967).

Hall, 976 S.W.2d at 153. The risk of an eyewitness making an incorrect identification is

greater if the police show the eyewitness a lineup where a single photograph “is in some

way emphasized.” Simmons, 390 U.S. at 383. In addition, the risk of misidentification

increases “if the police indicate to the witness that they have other evidence that one of

the persons pictured committed the crime.” Id. This court has noted that “a lineup would

be considered unduly suggestive only when the other participants were grossly

dissimilar.” State v. Edwards, 868 S.W.2d 682, 694 (Tenn. Crim. App. 1993) (citing

U.S. v. Wade, 388 U.S. 218, 233 (1967); Shye v. State, 506 S.W.2d 169, 173 (Tenn.

Crim. App. 1973); Young v. State, 566 S.W.2d 895, 898 (Tenn. Crim. App. 1978)).

Here, the trial court concluded at the suppression hearing that there was “nothing

whatsoever in this record to even remotely suggest that this was a suggestive procedure

or anything that was geared to make Mr. Bell identify these Defendants.”

Notwithstanding this finding, the court also considered the totality of the circumstances

and determined that Bell had the opportunity to view the Defendants during the robbery

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with “rapt” attention. The court noted that the witness had prior law enforcement training

and had testified in detail regarding his efforts to observe the Defendants both directly

and indirectly. The court found that Bell‟s description of the perpetrators was not at odds

with the individuals who were subsequently arrested. It also found that Bell had

demonstrated 100 percent certainty at the confrontation and that the length of time

between the robbery and the confrontation was “very short[.]”

The trial court found that the Walmart surveillance photographs were “simply

routine police work” because investigators had determined that the suspects left duct tape

at the crime scene and that the tape could have been purchased or shoplifted from

Walmart. In reviewing the photographic lineup, the court concluded that it was “the most

unsuggestive lineup” that the court had ever seen. It found that Bell had identified

photographs 2 and 5 in the lineup as the Defendants. The court noted that photograph 3

looked like “it could be a twin brother” of Cassell and that photographs 1 and 4 had

similar facial features. The court acknowledged that the individual in photograph 6

appeared less similar to Beckwith but concluded that the lineup was not unduly

suggestive.

After reviewing the record, we conclude that the evidence fully supports the trial

court‟s denial of the motion to suppress based on its finding that there was nothing

unduly suggestive about the identification procedure. The record establishes that the

robbery occurred sometime between 3:30 and 4:00 p.m. after the school day had ended

on April 16, 2012. One robbery suspect had initially used his shirt to conceal his face,

but his face was later uncovered. The second suspect did not cover his face. After

fleeing the crime scene, the suspects left a canvas bag with two rolls of Gorilla brand duct

tape. Earlier in the afternoon, at around 2:14 p.m., the Defendants were seen in Walmart

surveillance photographs, and it was later discovered that duct tape was missing from the

store‟s inventory. Investigators developed the Defendants as robbery suspects based on

their presence at Walmart and their red vehicle. Without knowing the identities of the

two men, the police showed Bell the Walmart photograph the day after the robbery, while

the suspects were armed and still at large. The Walmart photograph is dark and depicts

the profiles of two men entering the store. The facial features of the men are unclear, but

their profile, height and build are apparent. Bell testified that he had observed the

robbers for five minutes and that he could clearly see their faces. After he was shown the

surveillance photograph, Bell confirmed to police that the individuals were involved in

the robbery. Under these circumstances, the showup identification was justified and not

unnecessarily suggestive. See Moore, 596 S.W.2d at 844; see also Simmons, 390 U.S. at

384-85.

We further conclude that the photographic lineup was not unduly suggestive.

When the police learned the identities of the Defendants, they compiled a lineup with six

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color photographs depicting clear facial features from the neck up. On April 23, seven

days after the robbery, Bell positively identified the two Defendants from the

photographic lineup. All of the photographs depict men with close-cropped hair and

similar facial features. The six men have their eyes open and their mouths closed.

Although the Defendants are correct that their photographs do not contain height

indicators or superimposed diagonal lines, we disagree that the lineup “clearly highlights”

them. We agree with the trial court that photograph 6 is the most dissimilar individual,

but we reiterate that the “[p]hotographs contained in a photographic array do not have to

mirror the accused.” Hall, 976 S.W.2d at 153. Here, Bell was specifically advised that

the lineup may or may not include the guilty parties. He testified that he did not pay

attention to the backgrounds in the lineup and that he was 100 percent positive regarding

his identification of the Defendants. Upon review of the six photographs, we cannot

conclude that the Defendants‟ photographs were “grossly dissimilar” to the others.

Edwards, 868 S.W.2d at 694.

Moreover, the totality of the circumstances reflects that Bell‟s identification was

reliable. See Biggers, 409 U.S. at 199. First, Bell had the opportunity to view the

robbery suspects in the jewelry store for five minutes. The incident occurred during the

day, and Bell had an unobstructed view of the suspects‟ faces. Bell also had the

opportunity to view the suspects when he pursued them on foot after the robbery.

Second, Bell testified that he observed the men during the entire course of the robbery

and that he “made a lot of eye contact” with the armed man because he was concerned

about how the incident would end. Moreover, as an experienced former police officer,

Bell was able to pay closer attention to the suspects than a casual observer would. See,

e.g., State v. Biggs, 211 S.W.3d 744, 751-52 (Tenn. Crim. App. 2006) (citing cases that

recognize the difference in observations between trained law enforcement and lay

witnesses); see also Manson v. Brathwaite, 432 U.S. 98, 115 (1977). Third, Bell

described the suspects as white males in their early twenties with thin builds. Although

his description was general in nature, it was accurate. Fourth, Bell testified at the

suppression hearing that he was 100 percent certain of his identification of the

Defendants. Bell further identified the Defendants at trial with absolutely no doubt in his

mind.2 Finally, Bell identified the Defendants from a photographic lineup only one week

after the robbery. Under these circumstances, we conclude that the trial court did not err

in denying the Defendants‟ motion to suppress. Moreover, because we conclude that the

Defendants are not entitled to relief on this issue, we need not consider Beckwith‟s

argument that the trial court committed plain error in admitting identification evidence.

2

Although the Defendants appear to argue that Bell‟s identification was unreliable because he

identified an unspecified third suspect on the day of the robbery, the record does not support this claim.

At the suppression hearing, Bell conceded that he could not recall exactly when and what he was shown

by the police, but he testified that he was confident in his identification of the Defendants.

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II. Evidentiary Ruling. Cassell argues that the trial court erred in allowing Jeanie

Coffman to testify about the contents of the Walmart surveillance video. He asserts that

the testimony violated the best evidence rule and was inadmissible hearsay. We

understand Cassell‟s argument to be that Coffman should not have testified that she

observed the Defendants shoplift duct tape in the surveillance video without presenting

any video recording or still photographs depicting the Defendants removing the tape.

The State responds that Cassell has waived this evidentiary issue and that any error was

harmless. We agree with the State.

Initially, we note that Cassell has failed to include the transcript from the motion

for new trial hearing in the record on appeal. The appellant has the burden of ensuring

that the appellate record contains a fair, accurate, and complete account of what has

occurred regarding the issues that are the bases of the appeal. See Tenn. R. App. P.

24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). “In the absence of an

adequate record on appeal, we must presume that the trial court‟s ruling was supported by

the evidence.” State v. Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing

Smith v. State, 584 S.W.2d 811, 812 (Tenn. Crim. App. 1979); Vermilye v. State, 584

S.W.2d 226, 230 (Tenn. Crim. App. 1979)).

In his motion for new trial, Cassell argued as follows:

The testimony of Jeanie Wilburn [sic] as to what the closed circuit

video of the suspects at Walmart in Savannah, Tennessee [depicted] should

not have been admitted as it violated both the best evidence rule and the

hearsay rule. The video was never provided to the Defendant to examine

and therefore the Defendant‟s right to cross examine witnesses against him

was violated.

In a written order filed on January 6, 2014, the trial court denied Cassell‟s motion, noting

that the matter was heard on November 25, 2013. We cannot speculate regarding the trial

court‟s reasoning in the absence of the transcript from the hearing. Accordingly, we

conclude that the trial court properly admitted the witness‟s testimony at trial.

Waiver notwithstanding, we note that “[g]enerally, the admissibility of evidence

rests within the trial court‟s sound discretion, and the appellate court does not interfere

with the exercise of that discretion unless a clear abuse appears on the face of the record.”

State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d

136, 141 (Tenn. 2007)). A trial court is found to have abused its discretion when it

applies “an incorrect legal standard or reaches a conclusion that is „illogical or

unreasonable and causes an injustice to the party complaining.‟” Lewis, 235 S.W.3d at

141 (quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006).

-14-

“„Relevant evidence‟ means evidence having 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.” Tenn. R. Evid. 401. Tennessee Rule of

Evidence 402 provides that “[a]ll relevant evidence is admissible except as [otherwise]

provided. . . . Evidence which is not relevant is not admissible.” Id. at 402. However,

even relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Id. at 403.

Here, the trial court properly admitted Coffman‟s testimony. Coffman testified

regarding what she personally viewed on the Walmart surveillance video, and the

contents were extremely probative as evidence of Cassell‟s guilt. Still photographs of the

Defendants from the video matched the descriptions provided by witnesses at the scene

of the robbery. The still photographs from Walmart also depicted a red car that was

similar to the vehicle that Jamie Franks witnessed leaving the crime scene. Investigators

contacted Walmart to determine if any Gorilla duct tape was missing, and the store

reported that two rolls had been stolen. The probative value of Coffman‟s testimony

substantially outweighed any danger of unfair prejudice to the Defendants. Finally, in

light of the eyewitness testimony identifying the Defendants as the perpetrators of the

armed robbery at Livingston‟s Jewelry, Cassell cannot show that any erroneous

admission of Coffman‟s testimony “more probably than not affected the outcome of the

trial.” See State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (when assessing the

impact of a non-constitutional error, the reviewing court may appropriately consider the

properly admitted evidence of a defendant‟s guilt). Accordingly, Cassell is not entitled to

relief on this issue.

III. Sufficiency of the Evidence. Next, the Defendants argue that the evidence is

insufficient to sustain their convictions for aggravated robbery. Specifically, they

contend that the State failed to prove their identities as the perpetrators beyond a

reasonable doubt. They maintain that their convictions were based on unreliable

eyewitness testimony that was influenced by a highly suggestive Walmart photograph.3

The State responds that there is sufficient proof to support the Defendants‟ convictions

and that the jury accredited the State‟s witnesses. We agree with the State.

The State, on appeal, is entitled to the strongest legitimate view of the evidence

and all reasonable inferences which 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)). This court has often stated that “[a] guilty verdict by the jury, approved by the

3

It should be noted that Cassell and Beckwith do not dispute that they are the individuals depicted

in the still photograph from the Walmart surveillance video.

-15-

trial court, accredits the testimony of the witnesses for the State and resolves all conflicts

in favor of the prosecution‟s theory.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict also “removes the presumption of innocence and replaces it with a

presumption of guilt, and the defendant has the burden of illustrating why the evidence is

insufficient to support the jury‟s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982)).

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 findings by the trier of fact of guilt beyond a

reasonable doubt.” Guilt may be found beyond a reasonable doubt where there is direct

evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805

S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331

(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

The standard of review for sufficiency of the evidence “„is the same whether the

conviction is based upon direct or circumstantial evidence.‟” State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)). The jury as the trier of fact must evaluate the credibility of the witnesses,

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)). Moreover, the jury determines the

weight to be given to circumstantial evidence and the inferences to be drawn from this

evidence, and the extent to which the circumstances are consistent with guilt and

inconsistent with innocence are questions primarily for the jury. Dorantes, 331 S.W.3d at

379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). 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. Id. Our supreme court stated the rationale

for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury see

the witnesses face to face, hear their testimony and observe their demeanor on the

stand. Thus the trial judge and jury are the primary instrumentality of justice to

determine the weight and credibility to be given to the testimony of witnesses. In

the trial forum alone is there human atmosphere and the totality of the evidence

cannot be reproduced with a written record in this Court.

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Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d

523 (Tenn. 1963)).

“The identity of the perpetrator is an essential element of any crime.” Rice, 184

S.W.3d at 662 (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. Cribbs, 967 S.W.2d at 779. 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)). The identification of the defendant as

the perpetrator is a question of fact for the jury after considering all the relevant proof.

State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005) (citing Strickland, 885 S.W.2d at

87).

Here, Cassell and Beckwith do not dispute that an armed robbery took place at

Livingston‟s Jewelry. Instead, they argue that the proof is insufficient to establish their

identities as the perpetrators of the offense. They assert that although store owner Randy

Livingston testified that he could clearly see the perpetrators, he never made an out-of-

court identification of them. They further assert that retired police officer William Bell,

unlike other witnesses, never described the fact that one suspect wore a hat and the other

had sunglasses. The Defendants also claim that Christy Shelby and Kamela Hill provided

conflicting testimony and could not identify the suspects until they saw a Walmart

photograph. They note that Jamie Franks observed two men running to their car from a

distance and could not see their faces. Finally, the Defendants complain that although

Jeanie Coffman testified that she saw the Defendants steal duct tape from the surveillance

video, she failed to present any video or photographs of them removing the duct tape.

Viewing the evidence in a light most favorable to the State, we conclude that a

rational trier of fact could have found Cassell and Beckwith guilty of aggravated robbery

beyond a reasonable doubt. The incident occurred in broad daylight on a Monday

afternoon in downtown Savannah, Tennessee. At trial, Livingston testified that he got a

“got a very good look” of the perpetrators, and he identified Cassell and Beckwith

“without a doubt” as the men who had robbed his store. Both Livingston and Bell stated

that they observed the men for five minutes in the store and that the suspects‟ faces were

not covered the entire time. Bell further testified that he concentrated on the facial

features of the suspects and that he would not forget the face of a person who pointed a

gun at his daughter. He positively identified the Defendants in a photographic lineup

seven days after the robbery, once the police learned the identities of the suspects. Bell

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also identified the Defendants at trial as the perpetrators with absolutely no doubt in his

mind. This testimony, alone, is sufficient to sustain the convictions for both Defendants.

See Radley, 29 S.W.3d at 537; Strickland, 885 S.W.2d at 87. Shelby and Hill each stated

that they did not recognize the Defendants at the time of the robbery, but they identified

them as the robbers once they saw the Walmart photograph in the newspaper. Although

Franks could not clearly see the faces of the two men who fled in a red Pontiac, he

testified that the men were in their twenties and were about five feet and eight or ten

inches tall. Moreover, the State admitted the Walmart still photographs from April 16,

2012, into evidence, and the jury had the opportunity to compare the photographs with

the Defendants in court.

Cassell and Beckwith emphasize the discrepancies in the witness descriptions of

the perpetrators. However, the conflicts in the evidence were effectively presented to the

jury during cross-examination, and the jury chose to accredit the States‟ witnesses. We

will not reweigh or reevaluate the evidence. Despite inconsistencies in the witness

testimony regarding particular details, the State‟s witnesses were confident in their

identifications of the Defendants. Based on the evidence, a rational trier of fact could

conclude beyond a reasonable doubt that the State established the Defendants‟ identities

as the perpetrators of the armed robbery at Livingston‟s Jewelry on April 16, 2012.

Accordingly, they are not entitled to relief on this issue.

IV. Sentencing. Finally, the Defendants argue that the trial court erred in

sentencing them to twelve years‟ imprisonment consecutive “to anything pending in

Florida.” Specifically, Cassell asserts that he should not have received the same

maximum sentence as his co-defendant given that he was unarmed during the robbery

and only had one prior robbery in his record. Both Defendants contend that trial court

erred in ordering consecutive sentencing because “[i]f there was a sentence to be served

in Florida, the State should know. Otherwise, it would be up to Florida to determine if

any future sentence should be served consecutively or concurrently.” The State responds

that the trial court properly sentenced the Defendants. We agree with the State.

We review the length and manner of service of a sentence imposed by the trial

court under an abuse of discretion standard with a presumption of reasonableness. State

v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Moreover, the misapplication of

enhancement or mitigating factors does not invalidate the imposed sentence “unless the

trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long

as there are other reasons consistent with the purposes and principles of sentencing, as

provided by statute, a sentence imposed by the trial court within the appropriate range

should be upheld.” Id. This standard of review also applies to “questions related to

probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79

(Tenn. 2012). A trial court abuses its discretion only when it “applie[s] an incorrect legal

-18-

standard, or reache[s] a decision which is against logic or reasoning that cause[s] an

injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997);

see also State v. Kyto Sihapanya, ___ S.W.3d ___, No. W2012-00716-SC-R11-CD,

2014 WL 2466054, at *2 (Tenn. Apr. 30, 2014).

Pursuant to the 2005 amendments to the Sentencing Act, a trial court must

consider the following when determining a defendant‟s specific sentence and the

appropriate combination of sentencing alternatives:

(1) The evidence, if any, received at the trial and the 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 involved;

(5) Evidence and information offered by the parties on the mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant‟s own

behalf about sentencing.

T.C.A. § 40-35-210(b). The defendant has the burden of showing the impropriety of the

sentence on appeal. Id. § 40-35-401(d), Sentencing Comm‟n Cmts.

The trial court sentenced Cassell and Beckwith as Range I, standard offenders to

twelve years in the Department of Correction for aggravated robbery, a Class B felony.

See T.C.A. § 39-13-402. In imposing the maximum sentence in the range, the court

found that both Defendants had a prior history of criminal convictions or criminal

behavior, in addition to those necessary to establish the range. See id. § 40-35-105, -

112(a)(2), -114(1). The court was particularly concerned that the Defendants had prior

robbery convictions and emphasized the fact that Beckwith had two robbery convictions

as well as weapons-related charges. Based on its review of the presentence reports, the

court noted that the Defendants had apparently committed a robbery together in 2007.

Cassell argues that the trial court erred in imposing the maximum sentence in the

range. He asserts that the court “was influenced” by Beckwith‟s record when imposing

the “same maximum sentence.” Here, the court stated that enhancement factor (1) was

“the primary enhancing factor” for both Defendants. A review of Cassell‟s prior

convictions shows that he possessed a juvenile and adult criminal history “evincing a

clear disregard for the laws and morals of society and evincing failure of past efforts at

rehabilitation” and, therefore, was properly given “first priority regarding sentencing

involving incarceration[.]” T.C.A. § 40-35-102(5). The record further reflects that the

-19-

Defendants were cousins who first committed a robbery together in 2007 in Florida and

then committed armed robbery of a jewelry store in Tennessee after their release from

prison in August 2011. Therefore, the maximum sentence was “justly deserved in

relation to the seriousness of the offense[.]” Id. § 40-35-102(1). Moreover, we note that

the Defendants did not receive the “same” sentence, because the court sentenced Cassell

at 85 percent release eligibility and Beckwith at 100 percent. See id. § 40-35-501(k)(1),

(2) (requiring a sentence for aggravated robbery to be served at 85 percent or at 100

percent for individuals with prior aggravated robbery convictions). We conclude that the

trial court did not impose an excessive sentence in Cassell‟s case.

Next, both Defendants contend that the trial court improperly imposed consecutive

sentencing. When 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.

Id. § 40-35-115(a). The Tennessee Supreme Court has held “the 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 the seven

categories in section 40-35-115(b). T.C.A. § 40-35-115(b). 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. Moreover, “[a]ny one of these grounds is a sufficient basis for the imposition of

consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn.

2013)). “So long as a trial court properly articulates reasons for ordering consecutive

sentences, thereby providing a basis for meaningful appellate review, the sentences will

be presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Id. (citing

Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705). When imposing consecutive

sentences, the court must still consider the general sentencing principles that each

sentence imposed shall be “justly deserved in relation to the seriousness of the offense,”

“no greater than that deserved for the offense committed,” and “the least severe measure

necessary to achieve the purposes for which the sentence is imposed.” T.C.A. §§ 40-35-

102(1), -103(2), -103(4); State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

After the trial court imposed a twelve-year sentence at the sentencing hearing, the

State requested that the court align the sentence “consecutive to anything that‟s pending

in Florida [.]” In ordering consecutive sentencing, the court found by a preponderance of

the evidence that Cassell and Beckwith were professional criminals, were offenders

whose record of criminal activity was extensive, and were dangerous offenders whose

behavior indicated little or no regard for human life and no hesitation about committing a

crime in which the risk to human life was high. T.C.A. § 40-35-115(b)(1), (2), (4). The

court found that the risk to human life was high because the robbery occurred in the

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presence of a minor child and both the child and the store owner were forced to lie face

down on the ground. Accordingly, Cassell and Beckwith‟s judgments reflect that the

instant sentence should be served consecutive to “Fla convictions[.]”

As previously noted, the existence of only one factor is sufficient to impose

consecutive sentencing. See Pollard, 423 S.W.3d at 862; T.C.A. § 40-35-115(b). This

court has held that “an extensive criminal history, standing alone, is enough to justify the

imposition of consecutive sentencing.” State v. Nelson, 275 S.W.3d 851, 870 (Tenn.

Crim. App. 2008) (citing State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App.

1997)). In the case of both Cassell and Beckwith, the record fully supports the trial

court‟s finding that they were offenders whose record of criminal activity was extensive.

See T.C.A. § 40-35-115(b)(2).

Cassell‟s juvenile record began in 2000, at age thirteen, when he was fined for

possession of tobacco products. At age fifteen, he was found guilty of battery, burglary,

attempted burglary of an automobile, possession of marijuana and possession of drug

paraphernalia. After his driver‟s license was suspended for two years at age seventeen,

Cassell was convicted of leaving the scene of an accident about a month later and was

found in contempt for driving. Cassell‟s adult record includes five drug-related

convictions committed when he was nineteen and a robbery conviction at age twenty.

Beckwith‟s presentence report did not contain information regarding his juvenile

record. However, he was treated as an adult at age sixteen after committing armed

robbery in 1995. For that offense, he served four years in a Florida prison and was

released to two years‟ probation in June 1999. He was resentenced to prison for violating

his probation six months after his release in 2000. After his subsequent release to

probation in 2003, Beckwith returned to prison in 2007 after he was convicted of being a

felon in possession of a weapon and simple possession. He was paroled in 2011 after

serving a five-year sentence for an unarmed robbery committed in 2007. After the armed

robbery occurred at Livingston‟s Jewelry in April 2012, Beckwith was apprehended in

Chicago in May 2012 and convicted in Illinois of being a felon in possession of a

weapon.

Based on the Defendants‟ criminal backgrounds, the trial court was well within its

discretion in ordering consecutive sentencing. Moreover, the record supports a finding

that Cassell and Beckwith had a long history of criminal conduct and that measures less

restrictive than confinement had frequently or recently been applied unsuccessfully to

them. See id. § 40-35-103(1)(A), (C). Therefore, the trial court properly exercised its

discretion in ordering the Defendants to serve their sentences consecutively.

“[W]hile consecutive sentences are discretionary, in a few instances, consecutive

sentences are mandated either by statute or by Tenn. R. Crim. P. 32.” Id. § 40-35-115(d),

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Sentencing Comm‟n Cmts. Although not specifically relied upon by the trial court, we

note that Tennessee Rule of Criminal Procedure 32(c)(2)(B) provides:

If, as the result of conviction in another state or in federal court, the

defendant has any additional sentence or portion thereof to serve, the court

shall impose a sentence that is consecutive to any such unserved sentence

unless the court determines in the exercise of its discretion that good cause

exists to run the sentences concurrently and explicitly so orders.

Tenn. R. Crim. P. 32(c)(2)(B). According to their presentence reports, both Cassell and

Beckwith were convicted of a robbery that occurred in Pinellas County, Florida, on

February 12, 2007. Cassell‟s presentence report stated that Florida had a detainer on him

for the prior robbery conviction. Because the disposition date was August 18, 2007, it

appears that Cassell would have been released on probation on or around August 18,

2011. Beckwith received a five-year sentence for the 2007 robbery and was paroled on

August 12, 2011, about eight months before the armed robbery occurred in Savannah,

Tennessee. We conclude that the trial court did not abuse its discretion in ordering the

Defendants to serve their Tennessee sentence consecutive to their previously imposed,

unserved Florida sentence. Accordingly, we uphold the length and consecutive

alignment of the Defendants‟ sentences, and they are not entitled to relief.

CONCLUSION

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

Hardin County Circuit Court.

_________________________________

CAMILLE R. MCMULLEN, JUDGE

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