Opinion

State of Tennessee v. Anterrio Chambers

Court
Court of Criminal Appeals of Tennessee
Filed
Apr 15, 2019
Status
Published
On the bench
Presiding Judge John Everett Williams
Cited by
0 cases
Authority
More cited than 7.4%

The opinion

04/15/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 5, 2019

STATE OF TENNESSEE v. ANTERRIO CHAMBERS

Appeal from the Criminal Court for Shelby County

No. 16-00124 J. Robert Carter, Jr., Judge

___________________________________

No. W2018-01423-CCA-R3-CD

___________________________________

The Defendant, Anterrio Chambers, was convicted of attempted first degree murder, two

counts of aggravated assault, reckless endangerment, and employment of a firearm during

the commission of or attempt to commit a dangerous felony. He received an effective

thirty-one-year sentence. On appeal, the Defendant challenges the sufficiency of the

evidence supporting his convictions, the trial court’s failure to charge misdemeanor

reckless endangerment as a lesser-included offense of attempted first degree murder, and

the trial court’s imposition of partial consecutive sentences. Upon reviewing the record

and the applicable law, we affirm the judgments of the trial court.

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

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

MCMULLEN and J. ROSS DYER, JJ., joined.

Jason M. Matthews (on appeal) and Jennifer Mitchell (at trial), Memphis, Tennessee, for

the Appellant, Anterrio Chambers.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Michael McCusker,

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

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

The evidence presented at trial established that during the evening hours of July

15, 2015, the Defendant and two other men fired multiple shots at Mr. Ronald Young and

Mr. Brandon Brown while in the parking lot of Wolfchase Galleria in Shelby County,

Tennessee. Ms. Kourtney Kelley, the Defendant’s co-defendant, set up the confrontation

because she believed Mr. Young had taken money from her during a burglary of her

home. The Defendant was charged with attempted first degree murder of Mr. Young,

aggravated assault of Mr. Young and Mr. Brown, reckless endangerment of others who

were in the parking lot at the time of the shooting, and employment of a firearm during

the commission of or attempt to commit a dangerous felony, i.e., attempted first degree

murder.

Mr. Young testified that prior to the shooting, Ms. Kelley called him and stated

that she wanted to get something to eat, and Mr. Young asked her to meet him at the

mall. Although Ms. Kelley stated that she would be at the mall in ten to fifteen minutes,

she did not arrive until an hour later. Mr. Young stated that he believed something was

wrong because Ms. Kelley was generally punctual. At approximately 6:30 p.m. or 7:00

p.m., Mr. Young met Ms. Kelley by one of the entrances to the mall. Ms. Kelley was

sweating and acting nervous and did not make eye contact with Mr. Young. Mr. Young

gave Ms. Kelley $10.00 to purchase food, and she walked toward the food court, while

Mr. Young and Mr. Brown exited the mall.

As Mr. Young was talking on his cell phone, he saw two men, one of whom was

the Defendant, make eye contact with him and Mr. Brown. The Defendant was wearing

“highlighter pants, bright yellow, and a colorful T-shirt.” Ms. Kelley had previously

mentioned the Defendant to Mr. Young, and Mr. Young had viewed a photograph of the

Defendant on Ms. Kelley’s Facebook page. Mr. Young believed that Ms. Kelley and the

Defendant were dating.

The men attempted to cut off the path of Mr. Young and Mr. Brown. Mr. Young

ended his call and began walking toward his car. He testified that he saw a gun in the

Defendant’s pants pocket and that the Defendant was holding up his pants to keep his gun

from falling out. The Defendant asked Mr. Young if his name was “Ron” or “Ronnie”

and whether Mr. Young had been breaking into houses in Bartlett. Mr. Young said he

did not know why the Defendant was asking him such questions. Mr. Young told the

Defendant that he had the wrong person. Two other men were with the Defendant and

were “[f]ollowing his lead.”

Mr. Young testified that he believed his life was in danger and began walking

faster to his car. Once Mr. Young and Mr. Brown entered Mr. Young’s car, the

Defendant approached the driver’s side window and said, “[L]et me talk to you real

quick.” Mr. Young replied, “[N]o, we ain’t got nothing to talk about.” He started his car,

backed out of his parking spot, and drove in reverse in the parking lot while the

Defendant and the other men began shooting at Mr. Young and Mr. Brown. The

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Defendant continued to chase after the car and shoot at the occupants, and Mr. Young

feared for his life. As Mr. Young was driving from the scene, his mother called him and

met him at a friend’s home. Mr. Young’s mother drove him and Mr. Brown back to the

mall where they spoke to police officers.

Mr. Young testified that bullets struck the front of his car, the passenger side door,

the back panel of the passenger side door, and his two front tires. He had to have the car

repainted and the two front tires replaced. Bullet fragments were removed from the car.

Two days after the shooting, Mr. Young identified the Defendant and Ms. Kelley in a

photographic lineups.

On cross-examination, Mr. Young testified that he had known Ms. Kelley for

approximately two months prior to the shooting, that they had met through social media,

and that she was not his girlfriend. Mr. Young did not recall obtaining money from Ms.

Kelley on the day before the shooting.

Mr. Young stated that when he first saw the Defendant in the parking lot, the

Defendant was near Ms. Kelley’s car and appeared “kind of angry.” The Defendant

began walking in between cars and asking Mr. Young questions. The Defendant

followed Mr. Young to his car, and one of the men who was with the Defendant stood on

the passenger side of the car. Mr. Young did not know the whereabouts of a third man

who was with the Defendant. Once Mr. Young started his car, he cracked open his

window, and the Defendant said, “Get out the car, I need to talk to you.” Mr. Young saw

the Defendant holding the gun down by his side.

Mr. Young testified that prior to the shooting, he knew of the Defendant but had

never seen him. When officers questioned Mr. Young at the scene, he told them that he

did not know the identity of the shooters but that he believed Ms. Kelley had set up the

shooting. Later that day, Mr. Young looked at Ms. Kelley’s Facebook page and saw a

photograph of the Defendant, whom he recognized as the shooter. On redirect

examination, Mr. Young stated that Ms. Kelley attempted to contact him following the

shooting.

A surveillance recording of the shooting was played for the jury and showed that

the shooting occurred during the early evening while it was still daylight. The parking lot

of the mall was filled with cars, and people were walking to and from the mall. The

recording showed bystanders in the parking lot at the time of the shooting running for

cover. A family that included two children was walking into the parking lot when the

shooting occurred, ducked down, and ran back into the mall.

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Mr. Brandon Brown’s testimony at trial was consistent with Mr. Young’s

regarding Mr. Young’s meeting Ms. Kelley at the mall, her behavior, and their encounter

with the Defendant and two other men in the parking lot. Mr. Brown was unable to

identify the Defendant at trial and explained that he did not have the opportunity to look

at the Defendant closely at the time of the shooting. Mr. Brown was focused on one of

the other men, who was also in possession of a gun. Mr. Brown stated that when he and

Mr. Young got into Mr. Young’s car, the second man with a gun was standing toward the

front of the car on the passenger’s side. A third man was near the car.

Mr. Brown testified that after Mr. Young put the car in reverse, the man who was

near the passenger’s side shot twice into the passenger’s side. As Mr. Young backed out

of the parking lot, the Defendant fired two more shots into the front of the car. The

Defendant then began chasing them and shooting at them.

Ms. Kelley testified that she dated the Defendant on and off throughout high

school and that they broke up when she was a junior or senior. She met Mr. Young

during the summer of her freshmen year of college, and they had been “talking, dating”

for one or two months prior to the shooting. She stated that she and Mr. Young obtained

$4,000 after they participated in “a fraud situation with a bank account” and that they

shared the proceeds.

On the day of the shooting, Ms. Kelley returned home from work to discover that

the glass to her back door was broken and $2,000 in cash, which was her share of the

proceeds, was missing from a shoebox in her closet. No other items were taken from her

home. Ms. Kelley believed Mr. Young was involved in the burglary because he was the

only one who knew about the money. She testified that she was angry and upset and that

she contacted the Defendant and told him what had occurred. The Defendant told her

that he would speak to Mr. Young about the money. Ms. Kelley testified that the plan

was for the Defendant to approach Mr. Young and ask whether he had taken the money.

Ms. Kelley maintained that she only wanted Mr. Young to admit that he did it and for

him to know that she was aware that he was the perpetrator. She stated, “I never would

have imagined or even wanted things to go to the point that it did.”

The Defendant contacted Ms. Kelley and instructed her to pick him up at a

friend’s house. Ms. Kelley arrived after 5:00 p.m., and the Defendant, a man named

“Rico,” and another man got into Ms. Kelley’s car. Ms. Kelley said the Defendant was

wearing yellow pants and a black and yellow sweater. When he got into Ms. Kelley’s

car, she realized that he had a gun. The Defendant took the gun from his waist and put it

under the seat. Ms. Kelley told the Defendant that she did not want him to use the gun

and that he did not have to bring it. The Defendant assured her that he would not use it

and would not take it out of the car.

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Ms. Kelley testified that during this time, she was in contact with Mr. Young and

that they agreed to meet at the mall so that Mr. Young could give her money for food.

After picking up the Defendant and the other two men, Ms. Kelley contacted Mr. Young

and told him that she was on her way to the mall. She arrived at the mall around 6:00

p.m. or 6:30 p.m. She parked in the parking lot near the entrance to the food court and

entered the mall, while the three men remained in the car. She met with Mr. Brown and

Mr. Young, who gave her $10. Mr. Young and Mr. Brown walked toward the exit, while

Ms. Kelley walked toward the food court. She sent a text message to the Defendant that

the two men were exiting the mall. Ms. Kelley stated that while walking toward the food

court, she heard gunshots and “panicked.” Once the gunshots ceased, she ran outside to

her car.

Ms. Kelley testified that when she arrived at her car, the Defendant and the other

two men were in her car, and the Defendant was sitting in the driver’s seat. She said that

the men were “furious” and “very frantic” and that she was angry with the Defendant

because “it wasn’t supposed to go that way.” The Defendant asked her where Mr. Young

lived, and Ms. Kelley refused to tell him, which angered the Defendant. Ms. Kelley

stated that while leaving the mall, she called Mr. Young and sent him text messages

asking if he was okay. She drove the Defendant and the other two men back to the home

of the Defendant’s friend, and she then returned home where she told her step-father what

had occurred.

Ms. Kelley was subsequently arrested, and her charges were pending at the time of

her testimony. On cross-examination, she testified that she had not been made any

promises in exchange for her testimony and that she did not know what would occur with

her charges. She said she only knew that she was required to testify truthfully.

Memphis Police Sergeant Adam Pickering with the Crime Scene Investigation

Unit responded to the scene. He collected thirteen spent nine millimeter shell casings and

a projectile. He noted that a Hyundai in the parking lot appeared to have been struck by

bullets on the driver’s side taillight. He said it appeared that several rounds were fired in

a brief period of time and that the shell casings were laid out on the parking lot in a

direction running east to west.

Sergeant Pickering went to another location to examine Mr. Young’s car. He

observed an apparent bullet strike to the hood of the car in front of the driver’s seat, two

apparent projectile strikes on the passenger door, a possible bullet graze on the vent

window on the passenger side, and a possible bullet strike on the passenger side fender.

The jury convicted the Defendant of attempted first degree murder of Mr. Young,

aggravated assault of Mr. Young through the use or display of a deadly weapon,

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aggravated assault of Mr. Brown through the use or display of a deadly weapon, reckless

endangerment, and employment of a firearm during the commission of or attempt to

commit a dangerous felony. The trial court sentenced the Defendant to twenty-one years

for attempted first degree murder, four years for each aggravated assault, two years for

reckless endangerment, and six years for employing a firearm during the commission of a

dangerous felony. The trial court ordered the Defendant to serve his sentences for

attempted first degree murder and the firearm offense consecutively. The trial court also

ordered the Defendant to serve his sentences for aggravated assault and reckless

endangerment concurrently to each other but consecutively to his sentences for attempted

first degree murder and the firearm offense, for an effective sentence of thirty-one years.

ANALYSIS

I. Sufficiency

The Defendant challenges the sufficiency of the evidence to support his

convictions. The Defendant’s brief on this issue consists of one page merely reciting this

court’s standard of review on issues of sufficiency. He does not state the convictions that

he challenges, the basis for his challenge, or any argument to support his claim. Despite

the deficiencies in the Defendant’s brief, however, we conclude that the evidence is

sufficient to support the convictions.

When a defendant challenges the sufficiency of the evidence, the relevant question

for this 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). On appeal,

“‘the State is entitled to the strongest legitimate view of the evidence and to all

reasonable and legitimate inferences that may be drawn therefrom.’” State v. Elkins, 102

S.W.3d 578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.

2000)). Therefore, this court will not re-weigh or reevaluate the evidence. State v.

Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact,

not this court, who resolves any questions concerning “the credibility of witnesses, the

weight and value to be given the evidence, as well as all factual issues raised by the

evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

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

presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is

then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to

support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court

applies the same standard of review regardless of whether the conviction was predicated

on direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn.

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2011). “Circumstantial evidence alone is sufficient to support a conviction, and the

circumstantial evidence need not exclude every reasonable hypothesis except that of

guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).

The Defendant was convicted of attempted first degree murder of Mr. Young.

First degree murder is the premeditated and intentional killing of another. T.C.A. § 39-

13-202(a)(1). As the trial court instructed the jury, a person attempts to commit a

criminal offense who, “acting with the kind of culpability otherwise required for the

offense … [a]cts with intent to cause a result that is an element of the offense, and

believes the conduct will cause the result without further conduct on the person’s part.”

T.C.A. § 39-12-101(a)(2). A premeditated act is one “done after the exercise of

reflection and judgment.” T.C.A. § 39-13-202(d). Premeditation requires a finding that

“the intent to kill must have been formed prior to the act itself. It is not necessary that the

purpose to kill preexist in the mind of the accused for any definite period of time.” Id.

Premeditation is a question of fact for the jury’s determination. State v. Davidson, 121

S.W.3d 600, 614 (Tenn. 2003). It may be established by any evidence which could lead a

rational trier of fact to infer that premeditation was established by the proof as required

by statute. Id. at 615. Courts frequently look to the circumstances surrounding a killing

to discern the presence of evidence sufficient to support a finding of premeditation. State

v. Larkin, 443 S.W.3d 751, 815 (Tenn. Crim. App. 2013).

Factors tending to support the existence of premeditation include: “the use of a

deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations

by the defendant of an intent to kill; evidence of procurement of a weapon; and

preparations before the killing for concealment of the crime, and calmness immediately

after the killing.” Bland, 958 S.W.2d at 660. The factors listed in Bland are not

exhaustive. State v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013). The nature of the killing

or evidence establishing a motive for the killing may also support a conclusion that the

crime was premeditated. Id. Lack of provocation by the victim, failure to render aid, and

destruction or secretion of evidence may also support an inference of premeditation.

Larkin, 443 S.W.3d at 815-16 (citing State v. Thacker, 164 S.W.3d 208, 222 (Tenn.

2005); State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000)). “Under Bland,

shooting a retreating victim alone provides circumstantial evidence of premeditation.”

State v. Dickson, 413 S.W.3d 735, 746 (Tenn. 2013).

The Defendant also was convicted of aggravated assault of Mr. Young and Mr.

Brown. As applicable to this case, a person commits aggravated assault who

“[i]ntentionally or knowingly causes another to reasonably fear imminent bodily injury”

through “the use or display of a deadly weapon.” T.C.A. §§ 39-13-101(a)(2) (2014), 39-

13-102(a)(1)(A)(iii) (Supp. 2015). The Defendant was convicted of reckless

endangerment of those in the parking lot at the time of the shooting. As applicable to this

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case, a person commits reckless endangerment who “recklessly engages in conduct that

places or may place another person in imminent dangers of death or serious bodily

injury” and does so with a deadly weapon. T.C.A. § 39-13-103(a), (b)(2). Finally, the

Defendant was convicted of employing a firearm during the commission of or attempt to

commit a dangerous felony, and the dangerous felony was attempted first degree murder.

See T.C.A. § 39-17-1324(b), (i)(1)(A).

The evidence presented at trial, when viewed in a light most favorable to the State,

established that Ms. Kelley discovered money missing from her home and believed that

Mr. Young had taken it. She contacted the Defendant, who agreed to confront Mr.

Young. Ms. Kelley contacted Mr. Young and arranged to meet him at a mall under the

guise of obtaining money for food. She then picked up the Defendant who brought his

gun and two of his friends to confront Mr. Young. After meeting Mr. Young in the mall,

Ms. Kelley sent a text message to the Defendant, informing him that Mr. Young and Mr.

Brown were exiting the mall.

Once Mr. Young and Mr. Brown walked outside, the Defendant and two other

men approached them while armed with guns. The Defendant and the two men followed

Mr. Young and Mr. Brown to Mr. Young’s car. The Defendant held his gun at his side

while attempting to speak to Mr. Young. When Mr. Young began driving away, the

Defendant and one of the men fired numerous shots at Mr. Young and Mr. Brown. The

Defendant chased after Mr. Young and Mr. Brown and continued firing at them as they

drove away. The Defendant asked Ms. Kelley where Mr. Young lived, but Ms. Kelley

refused to tell him. Instead, the Defendant, the two men, and Ms. Kelley fled the scene.

The shooting occurred in the parking lot of a crowded mall during the early

evening hours. A video recording of the shooting showed that others were in the parking

lot when the shooting occurred, and a family that included two children were seen in the

video walking outside the mall, ducking in an effort to avoid the bullets, and running

back into the mall. We conclude that this evidence is sufficient to support the

Defendant’s convictions.

II. Lesser Included Offenses

The Defendant challenges the trial court’s failure to instruct the jury on

misdemeanor reckless endangerment as a lesser included offense of attempted first

degree murder. The Defendant acknowledges that he did not request such an instruction

at trial and that he did not raise the issue in his motion for new trial. See T.C.A. § 40-18-

110(c) (providing that a defendant’s failure to submit a written request to the trial court

for an instruction on a lesser included offense results in waiver of the issue on appeal);

Tenn. R. App. P. 3(e) (requiring that certain issues, including “jury instructions granted

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or refused,” be raised in a motion for new trial). However, the Defendant seeks plain

error review of the issue.

When necessary to do substantial justice, an appellate court may consider an error

that has affected the substantial rights of a party at any time, even though the error was

not raised in the motion for a new trial or assigned as error on appeal.” Tenn. R. App. P.

36(b). Five factors must be met before this court will conclude that plain error exists:

“(a) the record must clearly establish what occurred in the trial court; (b) a

clear and unequivocal rule of law must have been breached; (c) a

substantial right of the accused must have been adversely affected; (d) the

accused did not waive the issue for tactical reasons; and (e) consideration of

the error is ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted)). All five factors must be

established before this court will recognize plain error and “‘complete consideration of all

the factors is not necessary when it is clear from the record that at least one of the factors

cannot be established.’” State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016) (quoting

Smith, 24 S.W.3d at 283). “‘When asserting plain error, the defendant bears the burden

of persuading the appellate court that the trial court committed plain error and that the

error was of sufficient magnitude that it probably changed the outcome of the trial.’” Id.

at 505 (quoting State v. Smith, 492 S.W.3d 224, 232 (Tenn. 2016)).

A person commits the misdemeanor offense of reckless endangerment who

“recklessly engages in conduct that places or may place another person in imminent

danger of death or serious bodily injury.” T.C.A. § 39-13-103(a), (b)(1). If a person does

so while using a deadly weapon, the offense is a Class E felony. Id. (b)(2). This court

has recognized that misdemeanor reckless endangerment is a lesser included offense of

attempted first degree murder. See State v. Frederick Edward Braxton and Leonard

Cardell Harris, No. M2009-01735-CCA-R3-CD, 2011 WL 3809773, at *18 (Tenn. Crim.

App. Aug. 26, 2011); State v. David Lee Heakin, No. M2008-01834-CCA-R3-CD, 2010

WL 532863, at *8 (Tenn. Crim. App. Feb. 16, 2010).

To establish that the trial court’s failure to instruct the jury on a lesser included

offense resulted is plain error, the Defendant must show “a reasonable probability that ‘a

reasonable jury would have convicted the defendant of the lesser-included offense instead

of the charged offense.’” Martin, 505 S.W.3d at 505 (quoting State v. Richmond, 90

S.W.3d 648, 662 (Tenn. 2002)). Our supreme court has held that:

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where the jury convicts the defendant of a greater charged offense rather

than an immediately lesser offense standing between omitted lesser-

included offenses and the offense for which the defendant was convicted,

any error from the omission of jury instructions on these other asserted

lesser-included offenses is harmless beyond a reasonable doubt because the

jury, by finding the defendant guilty of the greater offense to the exclusion

of the immediately lesser offense, necessarily rejected all other lesser-

included offenses.

Moore v. State, 485 S.W.3d 411, 421-22 (Tenn. 2016) (citing State v. Williams, 977

S.W.2d 101, 106 (Tenn. 1998)). “[T]he term ‘immediately lesser offense’ does not

encompass facilitation of the charged offense.” Id. at 422 n.4.

The trial court instructed the jury on facilitation of attempted first degree murder,

attempted second degree murder, facilitation of attempted second degree murder,

attempted voluntary manslaughter, and facilitation of attempted voluntary manslaughter

as lesser included offenses of attempted first degree murder. Had misdemeanor reckless

endangerment been included in the jury charge, it would have been listed after attempted

voluntary manslaughter. The jury convicted the Defendant of attempted first degree

murder to the exclusion of the immediate lesser offenses of attempted second degree

murder and attempted voluntary manslaughter. The Defendant has failed to show a

reasonable probability that a reasonable jury would have convicted him of misdemeanor

reckless endangerment rather than attempted first degree murder had the trial court

provided such a jury instruction. Thus, the Defendant has failed to establish plain error.

III. Sentencing

The Defendant challenges the trial court’s imposition of partial consecutive

sentences. The only proof presented during the sentencing hearing was the presentence

report, which is not included in the appellate record. The trial court found that the

Defendant was a Range I offender. The trial court applied an enhancement factor based

upon the Defendant’s criminal history, giving significant weight to a prior aggravated

robbery conviction. See T.C.A. § 40-35-114(1) (“The defendant has a previous history of

criminal convictions or criminal behavior, in addition to those necessary to establish the

appropriate range.”). The trial court also applied as enhancement factors that the offenses

involved more than one victim and that the Defendant “had no hesitation about

committing a crime when the risk to human life was high.” T.C.A. § 40-35-114(3), (10).

The trial court described the circumstances of the offenses as “horrifying” and noted that

the mall was “busy” at the time of the shooting. The trial court further noted that the

video recording of the shooting showed “crowds of people with children who were diving

out of the way.”

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The trial court sentenced the Defendant to twenty-one years for attempted first

degree murder, four years for each aggravated assault, two years for reckless

endangerment, and six years for employing a firearm during the commission of a

dangerous felony. The trial court ordered the Defendant to serve his sentences for

attempted first degree murder and the firearm offense consecutively. The trial court also

ordered the Defendant to serve his sentences for aggravated assault and reckless

endangerment concurrently to each other but consecutively to his sentences for attempted

first degree murder and the firearm offense, for an effective sentence of thirty-one years.

This court reviews challenges to the length of a sentence under an abuse of

discretion standard, “granting a presumption of reasonableness to within-range sentences

that reflect a proper application of the purposes and principles of our Sentencing Act.”

State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). A trial court abuses its discretion when

it applies an incorrect legal standard, reaches an illogical conclusion, bases its decision on

a clearly erroneous assessment of the evidence, or employs reasoning that causes an

injustice to the party complaining. State v. Herron, 461 S.W.3d 890, 904 (Tenn. 2015).

This court will uphold the sentence “so long as it is within the appropriate range and the

record demonstrates that the sentence is otherwise in compliance with the purposes and

principles listed by statute.” Bise, 380 S.W.3d at 709-10. The decision to impose

consecutive sentences rests within the sound discretion of the trial court. State v. Hayes,

337 S.W.3d 235, 266 (Tenn. Crim. App. 2010). The standard of review for consecutive

sentencing is abuse of discretion with a presumption of reasonableness. State v. Pollard,

432 S.W.3d 851, 859 (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. at 862. The appealing party bears the burden of proving that the

sentence was improper. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Although the Defendant contends on appeal that the trial court erred in imposing

partial consecutive sentences, he failed to identify in his brief how the trial court erred or

to offer any argument to support his claim of error. Rather, the Defendant merely states

the standard of review and includes a block quotation from this court’s opinion in State v.

Biggs, in which this court held that the trial court erred in imposing partial consecutive

sentences because the sentence was not “‘justly deserved in relation to the seriousness of

the offense’” and was not the “‘least severe measure necessary to achieve the purposes

for which the sentence is imposed.’” 482 S.W.3d 923, 927 (Tenn. Crim. App. 2015)

(quoting T.C.A. §§ 40-35-102, -103).

We note that consecutive sentencing for the firearm charge and the underlying

felony of attempted first degree murder was mandatory. See T.C.A. § 39-17-1324(e)(1).

The trial court ordered the Defendant to serve his sentences for aggravated assault and

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reckless endangerment concurrently to each other but consecutively to his sentences for

attempted first degree murder and the firearm offense upon finding that the Defendant “is

a dangerous offender whose behavior indicates little or no regard for human life and no

hesitation about committing a crime in which the risk to human life is high.” T.C.A. §

40-35-115(b)(4). The Defendant does not challenge this finding on appeal. Furthermore,

the trial court relied upon the Defendant’s presentence report and his criminal history as

stated in the presentence report in imposing partial consecutive sentences. However, the

presentence report is not included in the appellate record. The Defendant, as the

appellant, has the burden of assuring that the appellate record includes “a full, accurate,

and complete account of what transpired with respect to those issues that are the bases of

appeal.” See Tenn. R. App. P. 24(a). “In the absence of an adequate record on appeal,

this court must presume that the trial court’s rulings were supported by sufficient

evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); see State v.

Scott Edward Robins, No. M2014-02372-CCA-R3-CD, 2015 WL 6437208, at *2 (Tenn.

Crim. App. Oct. 23, 2015) (stating that “[o]rdinarily, the presentence report is a necessary

part of this court’s review without which we must presume that the sentences imposed are

correct”); State v. Gregory Lynn Hill, No. E2008-02521-CCA-R3-CD, 2009 WL

3711993, at *12 (Tenn. Crim. App. Nov. 6, 2009) (holding that due to the absence of the

presentence report from the appellate record, this court must presume that the trial court’s

rulings regarding the defendant’s sentence was supported by sufficient evidence).

Accordingly, the Defendant has failed to establish that he is entitled to relief on this issue.

CONCLUSION

Upon reviewing the record and the applicable law, we affirm the judgments of the

trial court.

___________________________________________

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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