State of Tennessee v. Christopher Minor

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 1, 2016

STATE OF TENNESSEE v. CHRISTOPHER MINOR

Appeal from the Circuit Court for Madison County

No. 15-167 Roy B. Morgan, Jr., Judge

___________________________________

No. W2016-00348-CCA-R3-CD - Filed February 16, 2017

___________________________________

In a bifurcated trial, a Madison County jury convicted the defendant, Christopher Minor,

of two counts of first degree murder, two counts of aggravated burglary, one count of

aggravated assault, one count of convicted felon in possession of a firearm, one count of

employing a firearm during the commission of a dangerous felony, one count of

employing a firearm during the commission of a dangerous felony having been

previously been convicted of a felony, and six counts of violating Tennessee Code

Annotated section 40-35-121, the criminal gang offenses enhancement statute. The trial

court imposed an effective sentence of life plus twenty years. The defendant appeals his

conviction, challenging the sufficiency of the evidence and the constitutionality of

Tennessee Code Annotated section 40-35-121. The State argues the evidence was

sufficient to support the defendant‟s convictions, and the defendant waived his

constitutional challenge by raising his argument for the first time on appeal. We agree

with the State and affirm the judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,

J., joined. CAMILLE R. MCMULLEN, J., filed a separate opinion concurring in part and

dissenting in part.

Lee R. Sparks, Jackson, Tennessee, for the appellant, Christopher Minor.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant

Attorney General; James G. Woodall, District Attorney General; and Aaron J. Chaplin,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

This appeal arises as a result of the murder and aggravated burglary of deceased

victim Rico Swift, and the aggravated robbery and aggravated assault of female victim

Julie Frye. The jury trial began on September 22, 2015. At trial, the parties presented the

facts summarized below.

The afternoon of June 8, 2014, Terron Kinnie called the defendant and asked that

the defendant and Freddie Booth meet at his house around 4:00 p.m. Mr. Booth and the

defendant complied. All were members of a street gang known as the Black P-Stone1

Nation. Mr. Kinnie had the rank of “general” and oversaw the gang. The defendant was

a low-ranking member of the organization known as a “foot soldier.”

When the defendant and Mr. Booth arrived at Mr. Kinnie‟s home, Rayshawn

Norman, Kijuan Murphy, Terry Thompson, and Mr. Kinnie were present. Mr. Norman

was also a member of the Black P-Stone Nation, but Mr. Murphy and Mr. Thompson

were members of the Vice Lords, a related street gang. According to the defendant‟s trial

testimony, Mr. Kinnie announced that Mr. Norman needed to prove himself to the gang

by robbing the deceased victim. Mr. Kinnie chose the deceased victim because he had

animosity towards him and considered him weak. The deceased victim also sold

marijuana, and Mr. Kinnie knew he kept a large sum of cash in his apartment.

The defendant testified that the men developed a plan. Later in the evening, they

would go to the deceased victim‟s apartment. The defendant and Mr. Booth would enter

first under the guise of purchasing marijuana. While making their purchase, they would

surveil the apartment and determine whether anyone else was present. The remaining

men would then enter the apartment and rob the deceased victim.

Around 9:00 p.m., the men parked in the nearby driveway of a friend. The

defendant drove Mr. Booth, Mr. Kinnie, and Mr. Norman in his girlfriend‟s white

Chevrolet Malibu. A man known as “Big Ghost” drove Mr. Thompson and Mr. Murphy.

The defendant and Mr. Booth then walked to the deceased victim‟s apartment.

While the parties presented similar evidence at trial as to the subsequent events,

the accounts of the female victim and the defendant differ as to who beat and injured the

1

Throughout the transcript, the defendant‟s gang is referred to as either “Black P-Stone

Nation” or “Black Peace Stone Nation.” In order to maintain consistence, we will refer to it as

“Black P-Stone Nation.”

-2-

victims. The female victim testified that she and the deceased victim were in the

apartment watching basketball on television when they heard a knock on the door. The

deceased victim looked out the window, gave a funny look, and opened the door. He

then let Mr. Booth and the defendant into the apartment and locked the door behind them.

Mr. Booth entered the apartment first, followed by the defendant. The men each

asked for a “blunt”2 and gave the deceased victim $5 apiece. After taking the money, the

deceased victim turned to get the marijuana. Once the deceased victim turned around, the

defendant and Mr. Booth “jumped” him. The men grabbed the deceased victim around

the neck and beat him in the left side of his head. The female victim testified that “[t]hey

just kept busting him in his head, just everywhere.” While this was happening, she sat on

the couch in shock. Mr. Booth and the defendant eventually pushed the deceased victim

onto the couch and continued to punch him in the head. They then choked him. The

deceased victim‟s legs began jumping and he turned blue.

The female victim testified that she decided to do something to help her boyfriend.

She got up to walk to her bedroom and retrieve a pocketknife; however, before she got to

the end of the couch, the defendant directed Mr. Booth to “[g]et that bitch, get that bitch,

get that bitch.” Mr. Booth then grabbed the female victim, slammed her into the wall,

and threw her onto the kitchen floor. As she was being pushed into the kitchen, the

female victim saw three other men in the apartment. According to the female victim,

somebody must have let the men into the apartment because she remembered the

deceased victim locking the door. The defendant then came into the kitchen, put a small

gun between her eyes, and said, “Bitch, you got a phone? You got a phone, bitch?”

After she did not respond, the defendant drew back the gun. She next remembers waking

up on the kitchen floor covered in cockroaches and at trial agreed she got “knocked out or

something.”

After waking on the kitchen floor, the female victim walked into the living room

and found the deceased victim on his knees with his face down over the couch. She saw

blood everywhere. In search of help, the female victim ran to the parking lot and found

two men, Jarkius Person and Chance Mitchell. The men entered the apartment with her

and called 911.

At trial, the defendant offered a different account of his role in the events

occurring June 8, 2014. According to the defendant, after leaving their friends in the

nearby driveway, he and Mr. Booth walked to the deceased victim‟s apartment and

knocked on the door. The deceased victim answered the door, and the defendant and Mr.

2

The female victim testified that a “blunt” is a small amount of marijuana rolled into a

cigarette.

-3-

Booth asked for two “dime sacks”3 of marijuana. Mr. Booth then walked into the

apartment followed by the defendant, who closed the door behind him.

Once inside the apartment, the defendant began to look around and noticed the

female victim in the bedroom. The deceased victim retrieved the marijuana from his

bedroom, gave it to the defendant and Mr. Booth, and the men paid. Mr. Booth and the

defendant then exited the apartment and found Mr. Kinnie, Mr. Thompson, Mr. Murphy,

and Mr. Norman in the stairwell. The defendant walked past, said “no,” and held up two

fingers, attempting to signal that there were two people in the apartment, so they should

abandon the robbery. Despite his warning, Mr. Kinnie, Mr. Thompson, Mr. Murphy, and

Mr. Norman went inside the deceased victim‟s apartment. Mr. Booth closed the door

behind them, and the defendant and Mr. Booth ran to the nearby driveway where they

had parked their cars. Big Ghost was waiting in his car, and the defendant advised him

that there were two people in the apartment, but the men went forward with the robbery

anyway. After a couple minutes, Mr. Kinnie, Mr. Thompson, Mr. Murphy, and Mr.

Norman ran back to the cars. Mr. Kinnie, Mr. Murphy, and Mr. Norman got inside the

car driven by the defendant. They were covered in blood, but Mr. Norman had the most

blood on his body.

The men returned to Ms. Kinnie‟s house. According to the defendant, once at Mr.

Kinnie‟s house, they split the money taken from the deceased victim. The defendant, Mr.

Booth, and Big Ghost each received $50 for driving and scoping out the property. The

other four men received $300 apiece. Mr. Kinnie, Mr. Thompson, Mr. Murphy, and Mr.

Norman discussed the beating in the defendant‟s presence. They told the defendant that

the deceased victim tried to bite Mr. Norman, so Mr. Norman put him into a headlock.

Mr. Kinnie bragged to the group about hitting the deceased victim in the head. The men

said the female victim “just fell out.” The defendant denied hitting either victim. The

defendant further denied having a gun. According to the defendant, he did not learn

about the deceased victim‟s death until the following day.

Officers from the Jackson Police Department responded to the 911 call made

following the apartment invasion and beating. Officer Ricky Stewart was one of the first

officers to arrive at the crime scene, so he authored the police report. Officer Stewart

encountered the female victim when he arrived and testified that he did not observe any

blood, contusions, or bumps on her head. Officer Stewart noted in his report that the

female victim denied medical treatment.

Officer Darrell Listenbee, another patrol officer with the Jackson Police

Department, also responded to the emergency call. When he arrived, the female victim

3

The defendant testified that a “dime sack” contains a small amount of marijuana.

-4-

was waiting outside of the apartment. Officer Listenbee testified that upon entering the

residence, he found the deceased victim lying on the couch, unresponsive, and bleeding

from his head. Along with the female victim and another officer, Officer Listenbee

waited on the emergency medical responders to arrive. Officer Listenbee noted the living

room and one other room were in disarray. The female victim told him that she had been

hit in the head by one of the intruders and knocked unconscious.

Investigator Daniel Long was the first investigator to arrive. When he got to the

crime scene, Officer Stewart, Officer Listenbee, and a few other patrol officers were

already present, and the emergency medical responders had just arrived. Officer Stewart

informed Investigator Long that the emergency medical responders were inside working

on the victim, who had been assaulted, shot, or stabbed. The female victim was

distressed and reported to him that she had been smashed against a wall and struck in the

head with a pistol. The female victim was not actively bleeding.

Sergeant Chris Chestnut led the crime scene investigation. When he arrived, he

met with Investigator Long, who recounted the details of the crime scene and told him the

deceased victim had been taken to the hospital. Sergeant Chestnut then went inside the

residence with the female victim and a crime scene technician. The female victim

claimed she had been struck in the side of the head, but due to her hair, he could not see

whether she was bruised or bleeding. Inside the apartment, there were large amounts of

blood on the couch and floor and blood spattered on the walls. As the female victim

walked through the residence with him, she pointed out the items that had been disturbed.

The apartment had two bedrooms and both had been ransacked. The dresser

drawers had been smashed and items were overturned. The female victim‟s purse was

upside down on the bed in the master bedroom, and the contents of the purse had spilled.

The mattresses in both bedrooms had been moved so that somebody could look under

them. The female victim did not report any missing items, but she testified at trial that

$90 had been stolen from her purse, along with a prescribed bottle of Xanax. 4

Once the female victim calmed down, Investigator Long took her to the station

and obtained a statement. The female victim described the defendant as a tall, thin, black

male with dreadlocks and Mr. Booth as a shorter black male. The investigators began

canvassing the surrounding neighborhood for information. Sergeant Chestnut also went

to the hospital and met with Rita McCoy, the assistant medical examiner, and the victim‟s

family. He and Ms. McCoy were careful to preserve the body for autopsy but did

4

The female victim testified that she suffered a traumatic brain injury in a car accident and has

also had two brain aneurysms. In the past, she had taken Xanax, Topamax, and Lithium for her brain

conditions but had been released and, at the time of trial, only took medication as needed, including the

Xanax prescribed for her “nerves.”

-5-

visually inspect it. There were no visible gunshot wounds or stab marks. Investigator

Long testified that there was a deep laceration on the deceased victim‟s forehead caused

by some sort of blunt force. There was also some swelling to the deceased victim‟s eyes

and a lot of blood.

The following day, Sergeant Chestnut and his officers continued casing the

neighborhood. They also received several Crime Stoppers tips. One of the witnesses

they spoke with in the neighborhood reported seeing a suspicious white vehicle in the

area around the time the deceased victim‟s apartment was burglarized.

On June 12, 2014, Sergeant Chestnut received a report of a drive-by shooting.

Approximately sixty gunshots had been fired into the home of Terron Kinnie. When

Sergeant Chestnut and Investigator Long were leaving to respond, patrol officers were in

pursuit of a white Chevrolet Malibu suspected to be associated with the shooting. When

the vehicle finally came to a stop at a residence, the defendant got out of the driver‟s side

and collapsed in the yard. The defendant was one of the victims shot while at Mr.

Kinnie‟s house.

Sergeant Chestnut and Investigator Long were at the scene when the defendant

exited the vehicle. They recognized that the white Chevrolet Malibu matched the

description of the vehicle seen around the time of the deceased victim‟s murder. They

also noticed that the man getting out of the vehicle matched the description of one of the

suspects described by the female victim.

During the subsequent investigation into the shooting occurring June 12, 2014,

Sergeant Chestnut and Investigator Long uncovered additional information that linked

some of the people in Mr. Kinnie‟s residence at the time of the shooting to the deceased

victim‟s death. After obtaining search warrants to retrieve the data from numerous

cellular phones left at the scene of the shooting, Sergeant Chestnut and Investigator Long

looked through text messages and photographs for evidence related to the shooting.

When doing so, they found a text exchange about the deceased victim on a phone

belonging to the defendant‟s girlfriend. In response to a text stating, “Did you hear about

the murder of Rico Swift,” the defendant‟s girlfriend said, “Yes, my boyfriend and his

friends beat him to death.” Sergeant Chestnut and Investigator Long also found several

photos on Mr. Booth‟s phone of the defendant, Mr. Booth, Mr. Kinnie, and Mr. Norman

together, including a photo taken in November of the preceding year in front of the

apartment next door to the deceased victim‟s apartment and several photos of the men

together the day after the deceased victim‟s murder.

Prior to the shooting, the Jackson Police Department prepared photo lineups of

potential suspects, and the female victim had not been able to identify anyone. Following

-6-

the June 12, 2014 shooting, they prepared several additional lineups involving the people

present in the house at the time of the shooting. From those lineups, the female victim

identified the defendant and Mr. Booth. The female victim recognized Mr. Booth as the

shorter man that entered the apartment first and recognized the defendant as the thinner,

taller man with dreadlocks who entered the apartment behind Mr. Booth and later hit her

with a gun. The defendant no longer had dreadlocks at trial, but the female victim was

still able to identify him in the courtroom.

After being released from the hospital following the shooting, the defendant came

to the police station for questioning by Sergeant Chestnut. Mr. Booth had already been

questioned by investigators and had implicated the defendant. Sergeant Chestnut testified

that prior to taking the defendant‟s statement, he told the defendant that Mr. Booth and

the female victim had already reported his involvement in the deceased victim‟s murder.

The defendant then gave a statement similar to the testimony he rendered at trial and

identified the other men involved in the robbery and murder. At the conclusion of his

statement, the defendant offered this apology, “I apologize for what happened to that

man. I did not know it was going to happen like that. I was just following orders.”

The details the defendant gave of the beating were consistent with the details

given by the female victim and consistent with the victim‟s injuries. Though he claimed

others were responsible for the injuries, the defendant knew the deceased victim had been

grabbed in a headlock, beaten in the head, and that the female victim passed out. These

were not details that had been released to the public.

The deceased victim‟s body was sent to Nashville for an autopsy. Dr. Miguel

Laboy performed the autopsy and testified at trial that his external examination of the

deceased victim revealed the following: a half by a quarter inch partial thickness

laceration in his forehead; a half by quarter inch abrasion in the left forehead, slightly

superior to the eyebrow; puffy and hemorrhagic eyelid; petechiae inside the lining of the

eyelid; focal scleral hemorrhage in the superior left eye; multiple bruises on the chest,

sides, and back; and redness on the back and right flank. Dr. Laboy‟s internal

examination revealed contusions that involved areas of patchy hemorrhage on the

muscles between ribs nine and ten and ten and eleven. Dr. Laboy found the cause of

death to be blunt force injuries and asphyxia, and the manner of death to be homicide.

Dr. Laboy testified that the laceration on the forehead could have been caused by a gun,

but he could not tell the specific instrument used to cause the head laceration.

The State rested after calling Sergeant Chestnut, the female victim, Mr. Person,

Officer Listenbee, Dr. Laboy, and Investigator Long to testify. The defense called

Officer Stewart to confirm the female victim declined medical treatment. The defendant

then testified and offered his version of the events. The State did not present any rebuttal

-7-

proof. The jury found the defendant guilty of two counts of first degree murder (Counts

1 and 2), two counts of aggravated robbery (Counts 3 and 4), one count of aggravated

burglary (Count 5), one count of aggravated assault (Count 6), and one count of

employing a firearm during the commission of a dangerous felony (Count 14).

During the second phase of the trial, the jury considered whether the defendant

had prior felony convictions that would prevent him from possessing a firearm and

enhance his sentence for employing a firearm during the commission of a dangerous

felony. The jury also considered whether the underlying offenses were criminal gang

offenses pursuant to Tennessee Code Annotated section 40-35-121 and subject to

enhanced punishment. The State introduced a certified statement of Mr. Minor‟s prior

felony conviction for residential burglary in Cook County, Illinois Circuit Court on May

30, 2012.

The State called Investigator Aubrey Richardson with the Jackson Police

Department to testify. Investigator Richardson stated that she frequently participates in

gang investigations and has investigated both the Vice Lords and the Black P-Stone

Nation. Investigator Richardson first learned of the Black P-Stone Nation when she

interviewed the defendant as part of the Jackson Police Department‟s investigation into

the deceased victim‟s murder. According to Investigator Richardson, most street gangs

fall under the People Nation or the Folk Nation. The defendant informed Investigator

Richardson that both the Vice Lords and the Black P-Stone Nation fall under the People

Nation, so the Black P-Stone Nation and the Vice Lords are affiliated across the country.

There are not many members of the Black P-Stone Nation in the Jackson area, so due to

the relationship between the Black P-Stone Nation and the Vice Lords, the defendant

began to affiliate with the Vice Lords after moving to Jackson.

Investigator Richardson offered testimony regarding the defendant‟s tattoos. The

defendant has a five-point star on his neck. The five-point star is known to represent the

gangs within the People Nation, specifically the Vice Lords. The defendant has a

pyramid tattooed on his forehead. This is common to members of street gangs falling

under the People Nation. The defendant has another five-point star tattooed on his arm

with the number five in it. This is also common to members of the Vice Lords and other

gangs falling under the People Nation.

Investigator Richardson testified that the defendant associates with Kijuan

Murphy, who was also interviewed as part of her investigation. On Mr. Murphy‟s

Facebook page, she found a photograph of the defendant and four other men making

gang signs. Investigator Richardson has also reviewed the photographs found on Mr.

Booth‟s phone. One of the photographs showed the defendant, Mr. Booth, Mr. Kinnie,

and Mr. Norman making a pyramid with their hands. Mr. Booth‟s phone also contained

-8-

other photographs of the men the defendant associates with making gang signs with their

hands. Investigator Richardson stated that as part of her investigation in the deceased

victim‟s death and other crimes, she learned the defendant, Mr. Booth, and Mr. Kinnie

are all members of the Black P-Stone Nation, but because of the small number of them,

they hung out with Vice-Lords, including Mr. Murphy and Mr. Thompson. The State

introduced Mr. Murphy‟s criminal record into evidence, which showed felony

convictions in Madison County Circuit Court for aggravated burglary and aggravated

assault.

After calling Investigator Richardson as a witness, the State rested. The defendant

did not call any witnesses. The jury found the defendant guilty of one count of convicted

felon in possession of a firearm (Count 13), employing a firearm during the commission

of a dangerous felony having been previously convicted of a felony (Count 14), and six

counts of committing a criminal gang offense (Count 7 through Count 12). The trial

court noted that the defendant‟s first degree murder convictions mandated a life sentence

but declined to issue a formal sentence at that time and instead scheduled a sentencing

hearing to be held November 16, 2015.

The transcript from the subsequent sentencing hearing is notably absent from the

record provided to this Court. The judgments reflect an effective life sentence plus

twenty years, broken down in the trial judge‟s capital case report as follows:5

COUNT 1: FIRST DEGREE MURDER Counts 1 & 2 merge with

Counts 7 & 8

Life with possibility of

parole – 51 years

COUNT 2: FIRST DEGREE MURDER

COUNT 3: AGGRAVATED ROBBERY Counts 3 & 4 merge with

Counts 9 & 10

Enhancement – 20 years @

85%

COUNT 4: AGGRAVATED ROBBERY

COUNT 5: AGGRAVATED BURGLARY Count 5 merges with Count

11

5

While the trial court‟s capital case report does not list a sentence for each count, a

judgment and a sentence were, in fact, entered for each conviction.

-9-

Enhancement – 10 years @

30%

COUNT 6: AGGRAVATED ASSAULT Count 6 merges with Count

12

Enhancement – 10 years @

30%

COUNT 7: VIOLATION OF GANG ENHANCEMENT STATUTE

Counts 7 & 8 merge with

Counts 1 & 2

COUNT 8: VIOLATION OF GANG ENHANCEMENT STATUTE

COUNT 9: VIOLATION OF GANG ENHANCEMENT STATUTE

Counts 9 & 10 merge with

Counts 3 & 4

COUNT 10: VIOLATION OF GANG ENHANCEMENT STATUTE

COUNT 11: VIOLATION OF GANG ENHANCEMENT STATUTE

Merges with Count 5

COUNT 12: VIOLATION OF GANG ENHANCEMENT STATUTE

Merges with Count 6

COUNT 13: CONVICTED FELON IN POSSESSION OF A FIREARM,

Having been previously convicted of a felony, to wit:

Residential Burglary Merges with Count 16

COUNT 14: EMPLOYING A FIREARM DURING THE COMMISSION

OF A DANGEROUS FELONY TO WIT: AGGRAVATED

BURGLARY

Merges with Count 15

10 years @ 100%

To run consecutive to

Count 5

COUNT 15: EMPLOYING A FIREARM DURING THE COMMISSION

OFA DANGEROUS FELONY TO WIT: AGGRAVATED

- 10 -

BURGLARY, HAVING BEEN PREVIOUSLY

CONVICTED OF RESIDENTIAL BURGLARY

Merges with Count 14

10 years @ 100%

To run consecutive to

Count 5

COUNT 16: VIOLATION OF GANG ENHANCEMENT STATUTE

Merges with Count 13

4 years @ 30%

The defendant subsequently filed a motion for a new trial and an amended motion

for a new trial, in both only raising the insufficiency of the evidence to support his

convictions. The trial court denied the motions on February 8, 2016. This timely appeal

followed.

On appeal, the defendant argues the evidence presented at trial was insufficient to

support his convictions, and his convictions for six counts of violating the Gang

Enhancement Statute should be vacated because the statute has been found

unconstitutional. The State argues the evidence was sufficient to sustain the defendant‟s

convictions, and the defendant has waived his argument regarding the

unconstitutionality of the Gang Enhancement Statute and is not entitled to plain error

review. After a review of the record, submissions of the parties, and applicable law, we

affirm the judgments of the trial court.

Analysis

I. Sufficiency of Evidence

When the sufficiency of the evidence is challenged, the relevant question of the

reviewing court is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see

also Tenn. R. App. P. 13(e) (“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.”); State v. Evans, 838 S.W.2d 185,

190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

All questions involving the credibility of witnesses, the weight and value to be given the

evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by

- 11 -

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

conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973). Our Supreme Court has 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.

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

523 (1963)). “A jury conviction removes the presumption of innocence with which a

defendant is initially 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).

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)). This Court, when considering the sufficiency of the evidence,

shall not reweigh the evidence or substitute its inferences for those drawn by the trier of

fact. Id.

The defendant does not challenge the sufficiency of the evidence with respect to

the specific offenses, so this Court does not individually address the defendant‟s

convictions. The defendant instead argues the evidence was insufficient because the

firearm used during the commission of the offenses was never recovered, he abandoned

the robbery attempt by signaling “no” to his co-conspirators, and the female victim had

- 12 -

previously suffered from a traumatic brain injury, could not give a description of the gun

she claims the defendant pointed in her face, did not seek medical treatment following

the attack, and did not report any stolen items until she testified at trial. In effect, the

defendant challenges the credibility of the female victim‟s testimony.

Our review of the record reveals that the female victim testified that the defendant

was one of two men who initially came into the apartment under the guise of purchasing

marijuana from the deceased victim. The female victim further testified that both men

repeatedly beat the deceased victim in the head and choked him. Moreover, according to

the female victim‟s testimony, after Mr. Booth threw her against the wall and dragged

her to the kitchen, the defendant pointed a gun between her eyes and then knocked her in

the head with the gun, rendering her unconscious. When she woke, only the deceased

victim remained in the apartment, and he was hunched over the couch, bleeding

profusely from the head.

The defendant offered testimony that corroborated much of the female victim‟s

testimony. The core difference between the testimony of the female victim and the

testimony of the defendant is that the defendant denied the presence of a gun and

claimed his friends delivered the blows that injured the victims, while he merely

canvassed the apartment and subsequently tried to stop the robbery, and ultimately the

murder, from going forward. All questions concerning the credibility of witnesses are to

be resolved by the trier of fact and not the appellate court. See State v. Evans, 108

S.W.3d 231, 236 (Tenn. 2003). By finding the defendant guilty, the jury accredited the

testimony of the female victim and discounted the testimony of the defendant, and this

Court will not re-evaluate those findings on appeal. The evidence was sufficient to

support the defendant‟s convictions. Therefore, the defendant is not entitled to relief on

this basis.

II. Criminal Gang Offenses Enhancement Statute

The defendant further contends his convictions for violating Tennessee Code

Annotated section 40-35-121, the criminal gang offenses enhancement statute, should be

vacated because this Court has found the statute unconstitutional. The State argues the

defendant waived this argument by failing to raise it during trial or in his motion for new

trial, and the defendant is not entitled to plain error review because he failed to show a

breach of a clear and unequivocal rule of law. We agree with the State.

Based on our review of the record, the defendant challenges the constitutionality

of Tennessee Code Annotated section 40-35-121 for the first time on appeal, so the issue

has been waived. See State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010); State v.

- 13 -

Rhoden, 739 S.W.2d 6, 10 (Tenn. Crim. App. 1987); see also Tenn. R. Crim. P. 16(b)(2).

Moreover, the defendant is not entitled to “plain error” review. In discussing “plain

error” review, the Tennessee Supreme Court has held:

This Court will not grant relief under plain error review unless five criteria

are met: (1) the record clearly establishes what occurred in the trial court;

(2) the error breached a clear and unequivocal rule of law; (3) the error

adversely affected a substantial right of the complaining party; (4) the error

was not waived for tactical purposes; and (5) substantial justice is at stake;

that is, the error was so significant that it probably changed the outcome of

the trial. If any of these five criteria are not met, we will not grant relief,

and complete consideration of all five factors is not necessary when it is

clear from the record that at least one of the factors cannot be established.

The party claiming plain error has the burden of persuading the appellate

court.

Hatcher, 310 S.W.3d at 808 (citations and internal quotation marks omitted).

When enhancing the defendant‟s sentence pursuant to Tennessee Code Annotated

section 40-35-121, the trial court did not breach a “clear and unequivocal rule of law.”

This Court did not find the gang enhancement statute to be unconstitutional until after

the defendant‟s trial beginning September 22, 2015, and the imposition of his sentence

on February 8, 2016. See State v. Jermaine Stripling, No. 2015-01554-CCA-R3-CD,

2016 WL 3462134 at *8 (Tenn. Crim. App. June 16, 2016) (holding Tennessee Code

Annotated section 40-35-121(b) violates substantive due process principles); State v.

Devonte Bonds, No. E2014-00495-CCA-R3-CD, 2016 WL 1403286, at *22 (Tenn.

Crim. App. April 7, 2016) (holding Tennessee Code Annotated sections 40-35-121(b)

and (e) are unconstitutional). “Every act of the General Assembly is presumptively

constitutional until condemned by judicial pronouncement.” Taylor v. State, 995

S.W.2d 78, 85n7 (Tenn. 1999). Because the criminal gang offenses enhancement statute

was in full effect at the time of the defendant‟s convictions and sentencing, he is not

entitled to “plain error” review. The defendant is not entitled to relief on this basis.

The dissent references Teague v. Lane, 489 U.S. 288 (1987) and Meadows v.

State, 849 S.W.2d 748 (Tenn. 1993) overruled by Bush v. State, 428 S.W.3d 1 (Tenn.

2014). These cases reference the standard for applying a new state constitutional rule

retroactively to claims for post-conviction relief and are inapplicable to the situation at

hand. While we recognize the seemingly harsh impact of our ruling, due to the

defendant‟s failure to preserve his constitutional challenge of the gang enhancement

statute for appeal, there is simply no procedural mechanism on direct appeal for this

Court to vacate his convictions for violating Tennessee Code Annotated section 40-35-

- 14 -

121. In the absence of plain error, the defendant must have preserved the issue for

review by raising it before the trial court in a motion for new trial, and he failed to do so.

See State v. Gomez, 163 S.W.3d 632, 648 (Tenn. 2005) overruled on other grounds by

State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (recognizing plenary review is only

available in direct review “pipeline” cases when the issue has been preserved for

review).

Conclusion

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

trial court.

____________________________________

J. ROSS DYER, JUDGE

- 15 -