State of Tennessee v. Ariel K. Robinson, Christopher Duncan, and Timothy Shoffner

03/17/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 4, 2020

STATE OF TENNESSEE v. ARIEL K. ROBINSON, CHRISTOPHER A.

DUNCAN and TIMOTHY DAVID SHOFFNER

Appeal from the Circuit Court for Cheatham County

No. 17880 Suzanne Lockert-Mash, Judge

No. M2020-00058-CCA-R3-CD

In this consolidated appeal, Cheatham County juries convicted the defendants, Ariel K.

Robinson, Christopher A. Duncan and Timothy David Shoffner, of attempted second degree

murder, aggravated arson, especially aggravated kidnapping, aggravated burglary, and theft

of more than $2,500 but less than $10,000. The trial court sentenced the defendants to thirty-

seven, seventy-eight and 162 years respectively. On appeal, Defendant Shoffner contends

that: (1) the trial court erred when it denied his motion to dismiss because the indictment did

not adequately charge him with the offense of attempted first-degree murder. Defendant

Duncan contends that: (2) the trial court improperly denied his motion to suppress.

Defendants Robinson and Shoffner contend that: (3) the State delayed their viewing of the

evidence before trial. Defendants Duncan and Shoffner contend that: (4) the State failed to

establish a sufficient chain of custody for certain physical evidence; (5) the trial court

improperly admitted cell phone tower maps; and (6) the trial court erred when it did not

instruct the jury on facilitation. Defendant Robinson contends that: (7) the trial court erred

when it denied her impeachment request. All three defendants contend that: (8) the evidence

is insufficient to sustain their convictions; and (9) the trial court erred when it sentenced them.

After review, we affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and J. ROSS DYER, JJ., joined.

Crystal M. Morgan, Ashland City, Tennessee, for the appellant, Ariel K. Robinson.

Jennifer L. Honeycutt and Raquel Avina Abel, Franklin, Tennessee, for the appellant

Christopher A. Duncan.

Michele Denise Hodges, Nashville, Tennessee, for the appellant Timothy David Shoffner.

Herbert H. Slattery III, Attorney General and Reporter; Clark B. Thornton and Benjamin A.

Ball, Senior Assistant Attorneys General; Wendell Ray Crouch, Jr., District Attorney General;

and David W. Wyatt and Margaret F. Sagi, Assistant District Attorneys General, for the

appellee, State of Tennessee.

OPINION

I. Preliminary Motions and Trial

This case arises from the defendants invading a home owned by Frank S. Burnette,

who was Defendant Shoffner’s former stepfather. For alleged offenses that occurred during

the home invasion, a Cheatham County grand jury indicted the defendants for attempted first

-degree murder, aggravated arson, especially aggravated kidnapping, aggravated robbery,

and theft of property valued over $10,000 but less than $60,000.

A. Motion to Dismiss

Defendant Shoffner filed a motion to dismiss the indictment, claiming that the

indictment failed to charge an essential element of the offense of attempted murder. He

asserted that there were no elements for the charge of attempted murder listed nor was the

applicable statute cited. The State countered that the indictment sufficiently placed

Defendant Shoffner on notice, as the indictment alleged that, “on or about April 11, 2016,

prior to the indictment, in the County of Cheatham, then and there, did unlawfully,

knowingly, deliberately, feloniously, and with premeditation attempt to kill Frank S. Burnett

in violation of 39-12-101, a Class A felony . . . .”

The court found:

[T]he State and Federal Constitution, of course, guarantees a defendant

that they will have knowledge and nature of the offense. And to be sufficient,

an indictment must inform the defendant of a precise offense.

It must enable the Court, upon conviction, to enter a judgment, an

appropriate judgment, and it must protect the defendant from double jeopardy.

That’s basically what you have for an indictment in regard to the language and

the notice of that.

And it’s designed to, of course, afford the defendant an adequate

opportunity to prepare for trial and adequate defense. And if there’s a failure

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to specifically allege an element of the offense, it’s not necessarily fatal if the

elements are necessarily implied from the allegations made.

And if the offense is alleged in such a way that the defendant can’t fail

to be apprised of the elements of the offense, then the charge is sufficient,

notwithstanding the fact that an element may . . . not be specifically alleged.

But in looking at this, you have the situation where the District

Attorney’s Office have done the indictment . . . [a]nd they slipped in that word

“deliberately.” . . . But there’s no longer a deliberate in a murder case.

You all are the third DA’s office that I’ve told that to . . . . I’ve told

each DA, you all need to change your indictments.

But, in doing the research on the other cases, I’ve found . . . State v.

Christian and White v. State. And it exactly had an attempted murder charge.

And it stated, [“]If anything, the addition of deliberately creates a

higher burden on the State. Deliberate means to act with a cool purpose. Pre-

meditated means done after exercise of reflection and judgment.[”] And in

that Court, they had stated that the deliberate would suffice for intentional.

So I will deny your Motion to Dismiss. The indictment is sufficient,

even though it is an error.

The trial court denied Defendant Shoffner’s motion to dismiss, and Defendant Shoffner

appeals that finding.

B. Motion to Suppress

Before trial, Defendant Duncan moved to suppress statements that he made to law

enforcement on or about April 11, 2016, and any evidence obtained during a search by law

enforcement of the vehicle he was driving that same day. The basis for his motion was the

“absence of procedural safeguards related to” the custodial interrogation and the search. At

the motion to suppress hearing, the parties presented the following evidence: Lieutenant

Heflin testified that that he was the Lieutenant over the Criminal Investigation Division

(“CID”) for the Cheatham County Sheriff’s Department at the time of this investigation. On

the morning of April 11, 2016, he responded to a report of an arson and kidnapping off of

Cheatham Dam Road. The victim informed him that the suspects had tied the victim up,

beaten him, and held him against his will while trying to obtain his pin number to retrieve

money from his bank account. Lieutenant Heflin recalled that, a year before he had been to

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the victim’s residence in an attempt to locate Defendant Shoffner as part of an investigation

into an unrelated violent offense in Montgomery County.

Lieutenant Heflin subpoenaed the bank records, learned at which locations the card

had been used, and then obtained video footage from those locations. The pictures from the

video footage appeared to match Defendant Shoffner’s driver’s license photograph.

Lieutenant Heflin said that he learned that Defendant Shoffner was staying with Defendant

Robinson, and he sent narcotics agents to Defendant Robinson’s address to “make contact”

with Defendant Shoffner.

Officer Hundley, a narcotics officer at the time with the Cheatham County Sheriff’s

Office, testified that he and other officers went to Defendant Robinson’s house at Lieutenant

Heflin’s request. There, he saw several people inside the home through the home’s front

windows. He and other officers approached the house, and Defendant Robinson greeted

them at the front door. Officer Hundley identified himself and the other officers, who were

all in plain clothes, as law enforcement officers, and they asked to speak with Defendant

Shoffner, whom he saw inside the front living room area on a phone call. Defendant

Shoffner ended his phone call, and Officer Hundley asked to speak with him outside.

Defendant Shoffner agreed, saying he first needed to retrieve his shoes.

Officer Hundley said that he recognized Defendant Shoffner, by face and by clothing,

from surveillance footage from the locations where the victim’s ATM card had been used.

He explained that he had retrieved some surveillance footage from a gas station in

Clarksville to look for evidence that any of the suspects attempted to use an ATM card at

the gas station. The footage showed a man dressed in a Tennessee Titans jersey arriving in

a blue Mercury Marquis enter the store and attempt to use the ATM located to the left of the

front doors. Officer Hundley said he placed Defendant Shoffner in handcuffs and read him

the Miranda warnings before speaking with him outside. Officer Hundley then contacted

Lieutenant Heflin and informed him that they had located Defendant Shoffner.

Lieutenant Heflin arrived at Defendant Robinson’s house where he briefly spoke with

Defendant Shoffner in an attempt to ascertain who had accompanied him in the blue Mercury

Marquis. Defendant Shoffner told him that he had been in the vehicle with Defendant

Duncan and offered addresses and contact information for Defendant Duncan. Lieutenant

Heflin went to the address Defendant Shoffner offered and saw a blue Mercury Marquis

matching the security footage. Defendant Duncan was in the driver’s seat of the vehicle,

and he had a female passenger.

Lieutenant Heflin immediately detained Defendant Duncan and read him his Miranda

rights. Defendant Duncan then agreed that he was the man in the surveillance footage who

attempted to use the victim’s ATM card in a store. He explained that Defendant Shoffner

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had given him the debit card and asked him to try to get money from the account associated

with the debit card in exchange for some of the money. Defendant Duncan gave the officers

consent to search the Mercury Marquis. Lieutenant Heflin patted down Defendant Duncan

for officer safety and found in Defendant Duncan’s pockets the victim’s white cell phone

and some paperwork belonging to the victim. In the vehicle, Lieutenant Heflin and other

officers found a camera that contained pictures of the victim’s family and duct tape that

matched the duct tape on the victim’s clothing. Upon completion of the search, the

lieutenant had the vehicle towed and stored in law enforcement possession. The lieutenant

later obtained a search warrant and again searched the vehicle.

During cross-examination, Lieutenant Heflin said that he did not immediately obtain

an arrest warrant for Defendant Duncan based upon Defendant Shoffner’s statements

because he felt he needed more corroboration. The lieutenant recalled that Defendant

Duncan had a passenger, and they were both belligerent and yelling profanities when the

officers first approached them. He described the situation as chaotic and said that, for the

safety of himself and other officers, he detained Defendant Duncan and offered him his

Miranda warnings.

Upon questioning by the trial court, the lieutenant said that Defendant Duncan did

not appear afraid when he gave consent to search the vehicle. He further testified that

Defendant Duncan appeared to understand the process and that, at no time, did he refuse

consent to search.

Agent Amy Lamping testified that she was also present on April 11, 2016, at the time

of the vehicle search. She said that she arrived in a separate vehicle and that there were

other officers at the scene. Agent Lamping confirmed that the officers did not have their

guns drawn. She said she did not have the ability to record the interaction because she and

her vehicle were not equipped with video or audio recording capabilities.

Defendant Duncan testified that on April 11, 2016, he went to the trailer park to see

his girlfriend, with whom he was arguing. When he backed into the parking space,

unmarked police vehicles blocked in his vehicle. He alleged that Agent Lamping

approached his vehicle with her weapon drawn. He said officers immediately handcuffed

him. Defendant Duncan testified that they searched his vehicle without consent. He said

that he objected to their searching his vehicle. Defendant Duncan said that the officers

retrieved his cell phone and began reviewing his text messages and photographs.

During cross-examination, Defendant Duncan testified that officers never offered

him Miranda warnings and that law enforcement officers were lying when they said that

they had done so. He clarified that he had, in fact, told the officers that Defendant Shoffner

had given him a debit card that morning. He noted further that, when the officers asked to

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search his vehicle, he said “no” and did not give them consent. Defendant Duncan said

officers were also lying when they said that they found the victim’s papers and phone on

him. Defendant Duncan agreed that he had previously been convicted of several felonies,

including a manufacturing of a methamphetamine-related conviction, theft, and several

vehicle burglaries.

Based upon this evidence, the trial court noted that it must make its ruling based upon

its determination of the witnesses’ credibility, because Defendant Duncan said law

enforcement officers did not give him Miranda warnings before he made his statement, and

the law enforcement officer said that he had in fact offered Defendant Duncan his Miranda

warnings. The trial court “g[a]ve credibility to the witnesses and the officer” and gave “little

to no credibility to Defendant [Duncan].”

The trial court further found that the officers had “exigent circumstances” to search

the vehicle because law enforcement officers had probable cause to believe they would find

evidence of a crime in the vehicle. The trial court found, however, that the officers also had

Defendant Duncan’s consent to search the vehicle. Considering the totality of the

circumstances, the trial court found that Defendant Duncan’s consent was voluntary. It

noted that Defendant Duncan was twenty-six years old, had a criminal history involving

several interactions with law enforcement, had no type of physical or mental disability, and

that the officers had testified that they did not have their weapons drawn when Defendant

Duncan gave consent. The trial court found that Defendant Duncan’s consent was voluntary,

in that it was unequivocal, specific, intelligently given, and uncontaminated by any duress

or coercion. It further found that the subsequent search was valid and his statement to police

was voluntary. The trial court denied Defendant Duncan’s motion to suppress.

C. Trial

At the defendants’ trial on the charges of attempted first-degree murder, aggravated

arson, especially aggravated kidnapping, aggravated robbery, and theft of property valued

over $10,000 but less than $60,000, the parties presented the following evidence: On April

11, 2016, the victim was living in a four-bedroom, two-story house on Beech Grove Road

that he had built himself in 1980. In 2008, the victim married his third wife, Yi Chung Hey,

who had three children. Defendant Shoffner was one of her children. The victim and Ms.

Hey were married and divorced twice. The two divorced for the last time in 2015, and the

victim lived alone at the time of these events. At some point during the duration of their

marriages, , Defendant Shoffner lived with them in the Beech Grove Road home for about

three or four months.

The victim recalled the events leading to this attack. He said that, on April 10, 2016,

he worked on his house all day. He then purchased some beer, drinking a six-pack right

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before he went to bed, still fully clothed, at 11:00 p.m. or 12:00 a.m. in the bedroom located

on the main floor. His wallet and keys were in the front pocket of his clothing. The victim

recalled being awoken by a female, whom he later identified as Defendant Robinson,

shaking him and telling him repeatedly to get up. When he awoke, there was also a man,

whom he later identified as Defendant Duncan, in the room, and the two told him to go from

the bedroom into the living room. Thinking they were law enforcement officersand seeing

that at least Defendant Robinson was armed with a gun, he complied with their request.

When he went into the living room, the victim complied with Defendant Robinson’s

orders to sit down on the floor with his hands raised, as if he were being arrested. The

assailants took off his $185 Citizen watch and $100 gold ring, and the victim determined

that he was being robbed and not arrested. The assailants, neither of whom wore face-

coverings for the duration of the events, then bound his hands behind his back with duct tape

and bound his crossed legs together at his ankles. The victim recalled that Defendant

Duncan bound him with duct tape while Defendant Robinson gave the victim instructions

with which he was to comply. After he was bound, the assailants took the contents of his

pockets, including his billfold and a knife. The victim watched as Defendant Duncan went

through the house in what appeared to be an attempt to find things of value. He emptied the

victim’s drawers, and there were papers all over the bedroom, which the victim could see

from his position in the living room.

The victim recounted how the assailants asked for the PIN number to his ATM card,

which he attempted to provide to them. Defendant Robinson asked the victim how to open

the victim’s white Samsung 3 Galaxy phone, and he told her that she must make a zig zag

with her finger on the face of the phone. She did as he instructed, and she used the phone

to place a phone call to a third person, to whom she relayed the PIN number. When the third

person informed Defendant Robinson that the PIN did not work at the ATM machine,

Defendant Duncan kicked the victim both in the body and the head and asked him for the

PIN number again. The victim again provided it, but again it did not work, and Defendant

Duncan again kicked the victim. He then pointed a gun to the back of the victim’s head and

forcefully asked for the PIN number. The victim again gave him the PIN number, swearing

to the assailants that it was the proper number. This happened four or five times. At one

point, Defendant Duncan became so incensed that the PIN number was not working that he

fired the gun inside the home. The victim said that it was not until after this incident that he

realized that he had accidentally given the assailants the wrong PIN number.

The victim testified that Defendant Robinson discussed the security system in the

home, and the victim told her truthfully that it was not working. She instructed Defendant

Duncan to remove it from the victim’s pantry anyway. On a desk near the pantry, the victim

kept his computer, a red digital camera, and other odds and ends. The victim estimated that,

after he had been bound for approximately one hour, Defendant Robinson said to Defendant

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Duncan that they had been there long enough, and the victim watched as Defendant Duncan

left and returned with a gasoline can. He poured gas out on the floor from the front door

towards the home’s fireplace, turned around, and poured it as he walked back toward the

front door. Defendant Duncan looked at him and said, “I don’t want to kill ya,” but then

turned around and lit the room on fire. The victim said that the room filled with black smoke

quickly. He noted, however, that the mudroom door was open, so he scooted on his hands

and knees out that door and then down the basement steps.

He went into a bedroom downstairs to hide, and he got his left hand loose before both

assailants came down into the basement looking for him. Defendant Robinson pointed the

gun at him, the victim held up his hand, and Defendant Robinson said that she did not have

to kill him because he had no idea who she was and had never seen her before. Defendant

Robinson then attempted to fire the gun at him, but the gun did not work. She attempted to

fix it and fire it again, but it again did not work. Defendant Robinson said something to

Defendant Duncan and left, and Defendant Duncan shot his gun at the victim twice, but

seemingly intentionally missed high over his head and to the left. After shooting, Defendant

Duncan also left. The victim used his left hand to unbind his legs and right hand and then

ran to his niece Kristine Sproat’s house, who lived nearby. He was wearing a blue denim

shirt and blue jeans and identified a photograph taken by law enforcement of his shirt. He

explained that he took his shirt off when he started running because he felt as if one of his

hands was still bound.

The victim said Ms. Sproat took some time to answer her door, but she called 9-1-1

for him, and officers responded quickly thereafter. He left with law enforcement officers

when they arrived to return to his home. The victim said that he eventually went to the

hospital. He identified pictures, including some showing duct tape on his wrists and the legs

of his pants. He also identified a photograph that depicted Defendant Shoffner leaning out

of the window of the victim’s truck. The victim reiterated that he did not know either

perpetrator that came into his home that night. He testified that, after the fire, his home was

completely gone, save the basement and a few corners of the house sticking up.

The victim recalled that, after the attack, law enforcement officers showed him

pictures of suspects. He was unable to identify any of them with certainty from the

photographs. He said, however, that when he saw the defendants in person, including

Defendant Robinson’s unusual physical shape, rather than in a photograph, he was able to

positively identify them.

During cross-examination, the victim conceded that he had consumed a total of

approximately twelve beers during the day leading to these events. He agreed that he fell

asleep clothed because of the amount of beer he had consumed. The victim estimated that

his assailants were in his home for approximately two hours. During this time, Defendant

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Robinson did not wear a face-covering, and Defendant Duncan wore his for only the first

hour. The victim got a good look at both of their faces when they first bound him with duct

tape.

The victim agreed that, before Defendant Duncan lit the fire, he told him to get out

of the house when the fire was lit because Defendant Duncan did not want to kill the victim.

The victim agreed that he had testified during the preliminary hearing that he could not

identify Defendant Duncan’s face. He agreed that, during his interview the day after these

events, he did not tell officers that Defendant Duncan shot the weapon while upstairs and

only mentioned the shots downstairs. He further agreed that he had told officers that he

overheard Defendant Duncan tell Defendant Robinson that the victim was dead after he

seemed to intentionally miss him when shooting at him.

During further cross-examination, the victim described his 2001 black Ford Ranger

with a camper top that was stolen and explained why he valued the truck at $9,000. The

victim agreed that he never saw Defendant Shoffner at his house during this incident, and

he never heard him speaking to Defendant Robinson during the phone call.

During redirect examination, the victim identified photographs of some electronics

in his home. He also identified a photograph of a bruise on his chest. He said that, when

Defendant Robinson attempted to shoot at him, he was an arm’s length away from her, so

he could see her clearly.

Kristine Sproat, the victim’s niece, confirmed the victim’s recount of his knocking

on her door on the morning of April 11, 2016. When she answered the door, the victim,

dressed only in pants, shook as he told her that his house was on fire and said, “They tried

to kill me.” Ms. Sproat called 9-1-1, and she, her husband, and their three children, waited

with the victim until police arrived.

The 9-1-1 operator testified that she received the call related to this incident at 4:25

a.m. that indicated that someone had broken into the victim’s home, tied him up, stolen his

belongings, and set his house on fire. She dispatched officers, who arrived at the scene at

4:45 a.m. As the first officer on the scene, Deputy Jacob Kent, approached the victim’s

house, he saw that it was engulfed in flames. The deputy offered pictures that he had taken

at the scene of the home, noting that he arrived shortly before firefighters.

Deputy Kent said he proceeded to the Ms. Sproat’s home, where the victim was

located. When the deputy saw the victim, he noted that the victim’s hair was disheveled and

that he had a notable injury to his forehead. Deputy Kent also saw what appeared to be duct

tape around the victim’s ankles. The deputy described the victim as visibly upset, saying

that he had to calm down before recounting the events leading to the 9-1-1 call. He took the

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victim back to his house. Deputy Kent saw what appeared to be a denim shirt or jacket with

pieces of duct tape attached on the ground. Deputy Kent recalled that investigators from the

CID, including Lieutenant Ken Miller, responded to the scene.

During cross-examination, Deputy Kent testified that the victim told him that he was

assaulted by one male and one female, but that he was unable to identify either. The deputy

testified he saw that the victim’s wrists appeared red and some of the hair on his arms

appeared to be missing. When he and the victim returned to the victim’s house, the victim

stated that his black Ford Ranger was missing. He also stated that his assailants had taken

his wallet that contained his identification and debit card.

Ken Miller, a Lieutenant with Cheatham County Sheriff’s Department CID,

responded to the victim’s home at around 5:30 or 6:00 a.m., by which time firefighters had

gained control of the house fire. He spoke with Deputy Kent and then photographed the

crime scene in an attempt to preserve any evidence that might be compromised by the

firefighters. He observed and photographed the shirt laying on the ground upon which there

appeared to be duct tape. He also photographed a gas can that was laying in the yard.

Lieutenant Miller testified that he notified State Bomb and Arson Section of the Tennessee

Bureau of Investigations (the Bomb and Arson Section”) so that they could assist in this

investigation.

The State asked Lieutenant Miller about a side issue regarding the chain of custody.

Lieutenant Miller testified that he had recently been tasked with maintaining the integrity of

the evidence room for the sheriff’s office. He said that the sheriff’s office housed evidence

in three locations. One of those locations was downstairs in the same building as the sheriff’s

office and was secured by several locks because in it they stored weapons and narcotics.

The second location was on the same level as the sheriff’s office and only CID and

supervisors had key card access to the room. The room was climate controlled and had a

shelf for each detective, and each detective was responsible for the evidence in the room.

Every item brought into the room was documented before being placed on the assigned

detective’s shelf. The third storage area was a container that was used for evidence that did

not need to be climate controlled and was bulky, such as lawnmowers or weed eaters. Each

of these areas was locked and secured.

Lieutenant Miller testified that the evidence in this case had been kept in the second

storage room. He said that he checked the box out the morning before trial and checked the

seal to ensure the integrity of the evidence.

During cross-examination, Lieutenant Miller agreed that the new protocol for

evidence began five weeks before the trial and was not in place when the evidence in this

case was gathered. Before the new protocol was in place, the evidence was generally stored

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in each investigator’s respective office unless it was narcotics or something with volatile

fumes. He said that the whole office area was locked and, usually, each individual

investigator’s office was also locked.

In further cross-examination, the lieutenant said he was unsure where the evidence

box was stored before the new protocol. The evidence would originally have been stored in

Lieutenant Heflin’s office. The lieutenant said that a property log tracked the box while it

was in the sheriff’s office’s custody, but he did not have that sheet with him. He stated that

he did not gather the shirt and gas can that he photographed because dispatch called him to

another crime scene, and he was unsure who gathered them.

Lieutenant Shannon Helfin, who worked in the Narcotics Division of the Cheatham

County Sheriff’s Office, testified that he previously worked as a CID officer and it was in

this capacity that he investigated this case. When he arrived at the crime scene on April 11,

2016, the fire department was still present and officers, including Agent Lamping from

Bomb and Arson Section were on the scene. Deputy Kent was no longer at the scene, and

Lieutenant Helflin met with Agent Lamping, who said she had interviewed the victim. She

relayed to the lieutenant the victim’s recounting of the events, and he suggested that they

obtain the bank records showing at which ATMs the suspects had tried to use the bank card.

He informed her that he would attempt to obtain video from the relevant ATMs.

Lieutenant Heflin said that he obtained subpoenas for the bank records and for the

security footage at the respective ATMs. The lieutenant recalled that the victim’s bank card

had been used with an invalid PIN number seven or eight times, and the user was unable to

withdraw cash. The timing of the transactions comported with the victim’s recounting of

the events.

Lieutenant Heflin sent Jeremy Ethridge, a sergeant with the Cheatham County

Sheriff’s Office, and Jason Hundley,1 who was a sergeant with the Cheatham County

Sheriff’s Office at the time, to retrieve F&M bank statements for the victim’s account and

surveillance videos, including one from the Kangaroo Express. Sergeant Ethridge and Mr.

Hundley viewed the video from the Kangaroo Express and saw a white male exit a vehicle

and come inside the store, go directly to the ATM, and attempt to use the ATM. The man

was wearing a black Adidas jacket or pullover and an Atlanta Braves baseball cap. The

Kangaroo Express security system could not immediately copy the video, so the officers

recorded their video with cell phones. Sergeant Ethridge gave both videos to Lieutenant

Heflin. Lieutenant Heflin said that the Kangaroo Express video also showed another man,

dressed in a Tennessee Titans jersey and blue jeans, driving up to the store in a blue Mercury

1

Because Jason Hundley is no longer employed with law enforcement, we will refer to him as “Mr. Hundley.”

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Grand Marquis, that can . The video showed that man exiting the driver’s side of the vehicle,

coming into the store, and attempting to use the ATM card.

Lieutenant Helfin testified that videos from multiple locations matched photographs

of Defendant Shoffner and the photograph from his driver’s license. He learned that

Defendant Shoffner, whom he identified from the ATM surveillance footage, resided with

Defendant Robinson, and he sent Agent Ethridge and Mr. Hundley to her address on Cynthia

Drive to make contact with her. When Agent Ethridge and Mr. Hundley arrived, both

Defendant Shoffner, who was speaking on a cell phone, and Defendant Robinson were home

with guests. Defendant Robinson gave the officers consent to search her home. Officers

saw a black Adidas jacket lying on the floor by the couch and a grey Atlanta Braves hat on

the couch, both of which appeared to match the jacket and cap worn in the photograph from

the surveillance video from the ATM at the F&M Bank. Mr. Hundley noted that the Braves

hat was unique in that it was not made in standard Braves colors, and had a sticker on the

bill, which was “totally flat” and not curved. He gathered both items into an evidence bag

that he secured in a vehicle until the officers were finished in the home.

Mr. Hundley recalled that, at some point while he was at the residence, the black

phone being used by Defendant Shoffner when Mr. Hundley arrived was on the stove, and

Mr. Hundley asked to whom it belonged. None of the four people present initially claimed

the phone as theirs, so the officers took it into evidence until they could determine the

phone’s owner.

Lieutenant Heflin also went to the residence and spoke with Defendant Robinson,

who said that one of the guests present came to her residence on April 10 to babysit

Defendant Robinson’s child during the night. Defendant Robinson said that she decided not

to go to her planned destination, and instead stayed home. She said that she was at home at

the time that the robbery and arson occurred. The lieutenant obtained cell phone numbers

for each of the three defendants, and he obtained search warrants for their phones. The last

four digits associated with each defendant’s phone were: -8636 Defendant Shoffner, -7129

Defendant Robinson, -1387 Defendant Duncan.

Lieutenant Helfin then went to the Burkhart Trailer Park where he encountered

Defendant Duncan driving the blue Mercury Marquis seen in the ATM video. He had a

female passenger at the time. The lieutenant immediately detained Defendant Duncan and

offered him Miranda warnings. The lieutenant recalled that it was raining heavily, so he

patted Defendant Duncan down for officer safety. During the pat down, he recovered a

white cell phone from his left jacket pocket, along with some “paperwork” belonging to the

victim, which he immediately put into a plastic bag to protect it from the rain.

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Defendant Duncan told Lieutenant Heflin that he had attempted to use a debit card at

the Kangaroo Express earlier that morning. He consented to a search of his vehicle. In the

vehicle the lieutenant found a red digital camera and a roll of Gorilla duct tape. After

searching the vehicle, Lieutenant Heflin had the vehicle impounded, obtained a search

warrant, and again searched the vehicle a few days later. In it, he found a black knit cap and

a black cell phone.

Lieutenant Heflin said that, in July 2016, he received a call from a Tennessee Wildlife

Resource Officer, who told him that he had found the victim’s Ford Ranger in the woods

less than a mile from where the lieutenant arrested Defendant Duncan. When he examined

the vehicle, he saw that the interior was covered with some type of mold and fungus growth.

In the vehicle, the lieutenant found three ATM receipts from declined transactions.

Lieutenant Heflin discussed the chain of custody for the evidence gathered in this

case. He testified that all the evidence that he and other officers had collected and bagged

at the scene was placed into his vehicle, and he transported it to back to his office. Similarly,

all items taken from the scene of Defendant Duncan’s arrest were bagged and placed into

the lieutenant’s vehicle and taken to his office where he placed all the items into one large

box. The evidence remained in the lieutenant’s office until he and Agent Lamping, who was

the case agent, examined it. He described his office as in the CID, which is in a secure area

protected by a keycode, accessible only by detectives or their supervisors. The lieutenant

said that his personal office was accessible only to other detectives and Officer Marcy Jarrett

who was the evidence custodian for the department. The lieutenant said that the box

remained under his care, custody, and control at all times when it was in his office and up

until he placed it into the evidence room. He agreed that some of the evidence gathered did

not have the relevant information filled out on the bags. He said that some of the evidence

gathered at the scene was handed to him but not properly bagged. All the evidence, however,

was placed and kept in the box, which was later sealed. He noted that the bag containing

the evidence he found on Defendant Duncan, namely the documentation belonging to the

victim in the defendant’s pocket, was not properly sealed. The lieutenant placed the

documentation in the large box, which he kept in his office, until it was sealed and taken to

the property room.

The lieutenant noted that, when they went through the evidence, he saw pictures of

the victim’s family on the red digital camera found in Defendant Duncan’s vehicle. Upon

further inspection of the receipts from the declined transactions, he noted that one of the

receipts was from a USAA bank located on Dover Road in Clarksville. Looking at the

declined receipts found in the victim’s Ranger, the lieutenant said that one receipt was from

4/11/2016 at 1:53 a.m., at 2658 Madison Street, and it stated that the wrong PIN number had

been entered. Another receipt was from 4/11/2016 at 2:59 a.m., at Heritage Bank located at

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2185 Madison Street in Clarksville. The lieutenant testified that he gave the cell phones that

he obtained through his investigation to Agent Lamping for further analysis.

During cross-examination, Lieutenant Heflin testified that Defendant Duncan told

him that he had received the ATM card that he used on the morning of April 11, 2016,

around the time that he used it. The lieutenant agreed that he first made contact with

Defendant Duncan that same day after daylight, around 7:00 a.m. The lieutenant agreed that

there was a discrepancy in the log related to the cell phones, which stated that they were

recovered on April 14, 2016, when he actually collected them on April 11, 2016.

Lieutenant Heflin agreed that the bag containing the cell phones may not have been

properly sealed, but he did not know who improperly left it open. It further appeared that

one of the cellphones was placed improperly in a bag with another cellphone. Finally, a

phone charger that should have been in the bag was missing.

During further cross-examination, Lieutenant Heflin said that Agent Lamping was

the lead investigator in this case but was not listed on the crime scene log. He agreed that

Agents Ethridge and Mr. Hundley had not followed proper evidence collection procedure,

and he could not explain their reasoning, other than saying it seemed like an oversight.

Marion Pack, who was the custodian of records for Community Bank and Trust,

testified that the victim’s debit card was used on April 11, at 1:49 a.m. to make an inquiry

via an ATM at 2698 Madison Street in Clarksville, Tennessee. The response code indicated

that the invalid PIN number had been entered. The card was used several times, both to

inquire into the checking account and also to attempt to withdraw money, but the

transactions were declined based upon the invalid PIN number. The card was used at a

different location at 2:50 a.m. in Ashland City, Tennessee, again in an attempt to withdraw

money, which again the bank declined because of the invalid PIN number. At 2:59 a.m., the

victim’s card was attempted to be used to withdraw money at an ATM located at 2185

Madison Street. The transaction was declined based on invalid PIN number. At 7:17 a.m.,

the victim’s card was attempted to be used to inquire about the victim’s checking account

from an ATM at 523 Dover Road in Clarksville. The inquiry was declined based upon an

invalid PIN. A minute later, the card was used in an attempt to withdraw $200, which was

again declined.

The State offered, and the trial court admitted, two surveillance videos from the night

in question. Trey Vincent, a fraud examiner with F&M Bank, identified a video from the

ATM located at 2698 Madison Street from April 11, 2016 at 1:50 a.m. Tammy Bryant, a

manager at the relevant Kangaroo Express location, identified surveillance video from her

store at 7:18 a.m. on the morning in question. The State played the videos for the jury.

14

Special Agent Amy Lamping, who worked in the Bomb and Arson Section at the

time of these events, testified that she first went to the hospital to interview the victim and

get his consent to access the fire scene. She met with the victim at around 9:00 a.m. and

found him still shaken by the events of previous evening. She noted his visible injuries,

including a gash to his forehead and bruised hands. After interviewing the victim, Agent

Lamping went to the victim’s home on Beech Grove Road.

At the victim’s home, which was also the fire scene, she encountered Agent Michael

Zimmerman and Lieutenant Heflin. She said there were no other officers on the scene,

which was not unusual for bomb and arson investigations, as the area was taped off with

crime scene tape and there was little left of value. Agent Lamping said that Agent

Zimmerman was present at the scene with his K-9, accelerant detecting partner, Scooter.

The two were there to confirm or discredit the victim’s story that his assailants used an

accelerant to start the fire.

Agent Zimmermann confirmed this and testified that Scooter was a yellow Labrador

retriever trained to detect otherwise odorless accelerant. Agent Zimmermann and Scooter

reported to this crime scene, at the request of Agent Lamping. The two arrived on the scene

at 9:30 or 10:00 a.m. From the scene, Agent Zimmermann determined that there was a

“heavy fuel load” and the structure was allowed to burn for an extended period of time.

There was also excessive water damage, which proved that the fire required “quite a bit of

water” to extinguish it. At the scene, Scooter positively identified that there was accelerant

by the front door of the home, and on the front steps. Agent Zimmermann gathered samples

of each of the areas where Scooter alerted and placed the samples into clean cans. Agent

Lamping then took the cans to the Tennessee Bureau of Investigations (“TBI”) crime

laboratory to be tested.

Agent Lamping said that, once the K-9 officer’s dog indicated accelerant, she took a

picture of the area to document it and then gathered a sample. She placed the sample in an

unused empty paint can, which she sealed and labeled to take to the Tennessee Bureau of

Investigation (“TBI) Crime Laboratory for analysis.

Agent Lamping explained her presence at Defendant Robinson’s house on Cynthia

Drive, saying that she and other officers went there after having identified suspects from the

ATM surveillance videos. She said that they arrived during the evening of April 11, 2016.

While she was speaking with Defendant Robinson in her bedroom, she noticed some

electronic equipment that appeared to be video surveillance equipment. She asked

Defendant Robinson if the equipment belonged to her, and Defendant Robinson said that it

did not. Agent Lamping asked if she could take the equipment back with her, and Defendant

Robinson agreed, even providing Agent Lamping with a box to use to transport the

equipment.

15

Agent Lamping said that she and Lieutenant Heflin left the Cynthia Drive address

and went to the Burkhart Trailer Park looking for a blue Mercury Marquis that had been

identified in the Kangaroo Express surveillance video. They were trying to locate Defendant

Duncan who appeared in the video wearing a Tennessee Titans jersey and attempting to

access the victim’s bank account. When they arrived, Defendant Duncan agreed that he had

attempted to use the victim’s debit card. He provided the officers consent to search his

vehicle, and they found a red digital camera that contained photographs of the victim and

his family and a roll of black Gorilla duct tape. On Defendant Duncan’s person, the officers

found a white cell phone. Agent Lamping testified that she placed a sticker on the cell phone

and that she labeled the bag in which the phone was placed. She noted that the phone had

later been put into the wrong evidence bag.

Agent Lamping said that the officers had the vehicle towed to a law enforcement lot.

They obtained a search warrant and searched the vehicle again on April 14, 2016. During

that search, the officers found a receipt from a USAA bank located on Dover Road. It

showed that an ATM card was used on April 11, 2016, at 7:19 a.m., and that the transaction

was declined. Agent Lamping said that, during this second search, officers also found a

dark-colored ski mask and a black cell phone. Agent Lamping noted that the black cell

phone was also in the wrong evidence bag, and it appeared that the two phones were

switched and each placed in the other’s respective evidence bag. She, however, expressed

certainty that officers found the white cell phone on Defendant Duncan’s person and the

black cell phone in the Defendant’s car. Agent Lamping said all the evidence was placed in

a box and maintained by Lieutenant Heflin, other than the samples sent to the TBI. Agent

Lamping testified that it was her writing on the evidence that was in the box maintained by

the lieutenant because they were together when they gathered the evidence.

Agent Lamping said that she took the cell phones involved in this case to Detective

Scott Levassur at the Dickson County Sheriff’s Office for further analysis. She said that the

cell phones were in their correct evidence bags when she picked them up. Agent Lamping

received the evidence and the cell phones back from Detective Levassur on May 17, 2016.

She gave the phones back to Lieutenant Heflin.

During cross-examination, Agent Lamping testified that the lab results of the samples

taken from Scooter’s indications all returned negative for accelerant. She said that, after

Defendant Duncan admitted to using the victim’s debit card, officers placed him under

arrest. Agent Lamping said that she was certain of what items she found in the car because

she photographed them before placing them into evidence. The agent agreed that she failed

to send off the remnants of black duct tape for further testing. She agreed that the cell phone

charger was missing from the evidence bag, despite a note that it contained a cell phone

16

charger. The agent agreed that there was no crime scene tape at the scene of the victim’s

home but that there should have been.

Scott Levasseur, a lieutenant in the Cyber Crime Unit for the Dickson County

Sheriff’s Office, testified that he did what is referred to as a “data dump” on the phones in

this case. That term referred to the process of him using software to extract data on the

phone, which he then placed into an electronic format for investigators to look at.

Lieutenant Levasseur said that he examined three phones in this case pursuant to the

search warrant. For each of them, he extracted the data and burned the data to a disk for the

investigators. Each phone was examined separately, and the date extracted and saved

separately. The lieutenant identified the phones and the data for each of the phones.

Looking at the data dump for the victim’s phone that ended in the number -9456,2 he

testified that the call log showed that there was a phone call to a contact listed as “Bank” on

April 11, 2016, at 8:41 p.m. The call lasted two minutes and forty-one seconds. There were

three additional calls to the contact “Bank” and then multiple calls to a phone number ending

in -0029, which had no contact information associated with it. There were then six more

calls to the contact “Bank.” At 3:06 a.m. on April 11, 2016, there was a call to a phone

number that ended in -4748.

Looking at the data dump for Defendant Shoffner’s phone, Lieutenant Levasseur

testified that the call log for the phone showed that it received a call from a contact listed as

“Ariel,” last four digits matching Defendant Robinson’s phone, at 8:45 p.m. on April 10,

2016. That evening, the phone received and made calls to the contact “Chris,” last four

digits matching the phone for Defendant Duncan, and to a 1-800 number. Between 12:57

a.m. and 4:23 a.m., the phone received multiple calls from the phones of defendants

Robinson and Duncan, including four missed calls from Defendant Duncan and one from

Defendant Robinson between 1:10 a.m. and 6:50 a.m. There were also calls to and from

phone number ending in -2919, which had no contact name associated with it. At 7:27 a.m.

that same day, the phone received a seven-second call from Defendant Duncan’s phone. The

lieutenant said that this phone contacted the phones of defendant Robinson and Duncan more

than any other contacts. The lieutenant noted that there appeared to be an email account

linked with the phone, which showed the user name as “timshoffner4.”

During cross-examination, Lieutenant Levasseur agreed that the logs did not show

who was using the phone at the time the phone was in use.

2

This phone was the victim’s phone that law enforcement officers found in Defendant Duncan’s person.

17

Thomas Bell, a criminal intelligence analysist with the Regional Organized Crime

Information Center (“ROCIC”), testified that he analyzed the cell phone data in this case.

His analysis included the longitude and latitude information that was embedded in the calls

sent and received from the cell phones in this case. Mr. Bell explained that the investigating

officers in this case provided him the cell phone numbers for three cell phones. He then

inputted the data from the cell phone companies about these phones into a software program

that filtered that information to a date span given by the investigating officers.

Mr. Bell identified data from the cell phones associated with all three defendants.

The mapping of the data from the phones showed that between 10:00 and 10:30 p.m. on

April 10, 2016, all three phones were in use in the Clarksville area. The following morning,

the morning of April 11, 2016, at around 1:00 a.m. the phones of defendants Duncan and

Shoffner were using a tower in the vicinity of the victim’s home in Ashland City. Thirty

minutes later, Defendant Shoffner’s phone was using a tower located north of the victim’s

house, and the phones of defendants Duncan and Robinson were using a tower to the

southwest of the victim’s house.

Mr. Bell testified that over the next two hours, Defendant Shoffner’s phone indicated

that he was using different towers, some by the F&M Bank in Clarksville. During that same

time, the phones of defendants Duncan and Robinson continued to be in use, pinging off the

tower that was in the vicinity of the victim’s house. Around 4:15 a.m., Defendant Shoffner’s

phone remained in Clarksville, while the phones of defendants Duncan and Robinson

remained in use near the victim’s house. Twenty minutes later, the phones of defendants

Duncan and Robinson engaged towers just southeast of Clarksville, and, by 5:00 a.m., the

phones were utilizing towers that were the same as the ones used at 10:00 a.m. the previous

evening.

At 7:20 a.m. Defendant Duncan’s phone engaged a tower to the northeast of the

Kangaroo Express, where he attempted to withdraw money using the victim’s ATM card.

The phone data showed that Defendant Shoffner received two calls from Defendant Duncan

around that time, one at 7:11 a.m. and one at 7:20 a.m.

Marcy Jarrett testified that she was the evidence custodian for the sheriff’s

department. For the approximately four years leading to the trial, and as far back as these

events, her responsibilities included storing and checking evidence in and out as needed.

Officer Jarrett described her procedures for receiving and storing evidence. She described

the three areas in which they kept evidence and the procedures to access that evidence.

Officer Jarrett identified the box of evidence in this case. She received the box from

Lieutenant Heflin, sealed it, and wrote the victim’s name and the incident number on the

box. She explained that she and the officers know where the evidence is kept because their

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“Tyler System,” a computer tracking system that logs evidence into and out of different

storage areas. The box was originally housed in the same room as the narcotics. Then,

because of overcrowding, it was moved to the storage container. When the CID property

room was incepted, the box was placed there, where it remained until trial. The box had

been checked out “a few times,” but she checked it back in and resealed it each time.

Based upon this evidence, the jury convicted the defendants of the lesser-included

offense of attempted second degree murder, the charged offenses of aggravated arson,

especially aggravated kidnapping, aggravated robbery, and the lesser-included offense of

theft of property valued at more than $2,500 but less than $10,000.

D. Sentencing Hearing

At the sentencing hearing, the victim identified photographs of his house before and

after the fire and of himself in the hospital. He recounted how he had lost everything, his

history, his documents, his money. During the attempt to clean up what remained of his

home to rebuild, there was another fire, and he got second degree burns to his arms and face.

Later, as his house was being rebuilt by a construction company, someone tore down part of

the rebuilt porch and started another fire.

The victim said he had since rebuilt his house using insurance proceeds. The victim

said that he had to purchase a new truck to replace the one that the defendants stole and that

he never received back the stolen jewelry. He described these events as “devastating.” The

victim reminded the trial court that Defendant Duncan could have killed him but did not.

During cross-examination, the victim said that he believed that Defendant Robinson

was in charge during the attack. He further stated that he believed that all of the defendants

should be given a second chance.

Teresa Geas, the probation and parole officer who did the presentence report in this

case, testified that Defendant Duncan was twenty-seven years old at the time of sentencing.

Defendant Duncan had several prior convictions, including initiation of a process to

manufacture methamphetamine in 2015, an offense for which he received an eight-year

sentence. Defendant Duncan had also previously been convicted of burglary in 2017, with

a four-year sentence; theft in 2015, with a two-year sentence, theft in 2014, with a four-year

sentence; multiple theft convictions, a reckless endangerment with a deadly weapon, and

multiple burglary convictions, all in 2012. Officer Geas found a total of thirteen felony

convictions, including the felonies in this case. The felonies in this case were committed

while Defendant Duncan was on community corrections.

19

While incarcerated, Defendant Duncan had been disciplined on multiple occasions.

He tested positive on a drug screen on September 17, 2018, possessed a deadly weapon

(three homemade knives) on February 7, 2019, refused a cell assignment in March 6, 2019,

possessed a deadly weapon (three homemade knives) on June 10, 2019, and engaged in a

fight on June 26, 2019. There was an “intelligence alert” associated with Defendant Duncan

to warn staff that he was a known maker or manufacturer or holder of homemade weapons

and knives and, as such, should be closely monitored.

Defendant Duncan self-reported his physical health as fair but stated that his mental

health was “poor” due to depression, stress, and being suicidal. The Defendant reported that

he consumed alcohol, and in 2013 began using methamphetamine “daily.” In 2017, he

began using heroin and PCP. He reported that, in 2012, he used acid “a lot.” She noted that

this offense occurred in 2016, and that the Defendant was incarcerated in 2017, so he would

have first used PCP while incarcerated, if his self-reporting was accurate. The Defendant

also reported abusing prescription drugs in 2008. On the questionnaire, Defendant Duncan

reported that he could not pass a drug screen, despite the fact that he was incarcerated.

Defendant Duncan also reported not having a father. He said his mother was a single

mother and had a hard time paying their bills. Therefore, they were homeless intermittently

throughout his childhood.

Officer Geas also prepared the presentence report for Defendant Robinson, who was

twenty-eight years old at the time of sentencing. Defendant Robinson declined to offer her

version of the events surrounding her conviction. Defendant Robinson had no prior

convictions, but she did receive multiple disciplinary actions while incarcerated that resulted

in punishment, such as fighting, being out of place, hoarding medication, and property

destruction. She had also pleaded guilty in General Sessions Court to a vandalism that

occurred while incarcerated . Defendant Robinson’s testing indicated that she scored

“overall high for violence, property and drug use, with high target risk areas for attitudes,

and behaviors, and aggression, and mental health.”

Officer Geas said that Defendant Robinson reported substance abuse issues by saying

that, at different times, she used marijuana cocaine, and methamphetamine, and she reported

attending a treatment program. She also reported that she had sold drugs to get more drugs.

Defendant Robinson said that, along with seeking substance abuse treatment, she had also

sought counseling for mental health issues. The officer said the Defendant also indicated

she had attempted suicide while incarcerated.

Defendant Robinson reported that she had graduated high school, attended one year

of community college, and had two children, neither of whom were in her custody.

20

Defendant Robinson said her children’s father was abusive and a gang member, being

affiliated with the Vice Lords.

During cross-examination, Officer Geas testified that she had not gathered

information about Defendant Robinson’s medical reports while incarcerated, so she was

unsure whether Defendant Robinson was medicated at the time that she was disciplined.

During redirect, Officer Geas discussed Defendant Shoffner’s presentence report.

She stated that he was twenty-seven years old and associated with the gang the Vice Lords.

Defendant Shoffner’s prior record indicated that he had been convicted for aggravated

assault in January 2019 for stabbing another inmate. In March 2016, he was convicted of

evading arrest and flight, and in 2015, he was convicted of multiple assaults. That same

year, he was convicted of aggravated robbery, especially aggravated robbery, aggravated

burglary, and reckless endangerment. In 2011, Defendant Shoffner was convicted of

multiple thefts, burglary, and aggravated burglary. Along with numerous other convictions,

Defendant Shoffner had been convicted in 2009 of reckless endangerment as a lesser-

included offense of the charged offense of attempted second degree murder. Officer Geas

offered certified copies of Defendant Shoffner’s fifteen prior felony convictions.

Defendant Shoffner had also received multiple disciplinary actions while

incarcerated. He had refus ed to take or altered a drug screen, assaulted another inmate, had

a positive drug screen, threatened group activity, possessed deadly weapons (three knives),

and engaged in fighting.

Defendant Shoffner reported that he had not graduated from high school. He stated

that his mental and physical health were “excellent” and said he had never attended any sort

of treatment program. The Defendant admitted using alcohol but denied using any illegal

drugs.

Officer Geas confirmed that Defendant Shoffner was on bond at the time of the April

2016 events.

Defendant Duncan offered the testimony of his mother, Melissa Riester. Ms. Riester

testified that she was fifteen years old when Defendant Duncan was born and that she lived

with her father, who was intermittently abusive to Defendant Duncan. She recalled multiple

situations where police intervened to assist Defendant Duncan. She recounted how

Defendant Duncan had been placed in special education classes in school because he was

behind and had some learning disabilities. This caused him to be bullied. Eventually, the

State took custody of Defendant Duncan. Ms. Riester recalled that Defendant Duncan’s

father did not participate in his care, and, at one point, said hurtful things to Defendant

Duncan about his being a mistake.

21

Ms. Riester testified that she was in multiple relationships that were abusive, and that

one of her boyfriends physically assaulted Defendant Duncan, breaking his occipital bone

in four places. She said this assault “changed” Defendant Duncan, and that he began using

and became addicted to drugs. This addiction contributed to his criminal behavior. Ms.

Riester said that Defendant Duncan was not a violent person and that these actions were out

of character for him.

Defendant Robinson’s mother, Lorene Robinson, testified and described her daughter

as “[s]weet, kind, [and] very giving.” She said that Defendant Robinson had been the victim

of domestic violence, the father of her children having raped her, and held her against her

will. Mrs. Robinson said that she intervened and took Defendant Robinson to Chicago to

get away from him. Her assailant was criminally charged, but Defendant Robinson was

arrested on the charges in this case before the domestic case went to trial.

Mrs. Robinson discussed Defendant Robinson’s childhood, saying that she struggled

in school and suffered from ADD. She said that she had trouble making friends, and Mrs.

Robinson worked long hours and so was not there to care for her. Mrs. Robinson confirmed

that Defendant Robinson participated in substance abuse treatment and subsequent

counseling.

Mrs. Robinson said that Defendant Robinson was a single mother who had little

support and was in a violent relationship. She recalled that Defendant Robinson began using

drugs at a young age.

Tabitha Tackett testified that she worked for Legal Aid Society as a victim’s advocate

in domestic violence cases and that Defendant Robinson had come to her office for

assistance. Ms. Tackett assisted Defendant Robinson in obtaining orders of protection

against Defendant Robinson’s ex-boyfriend.

Natasha Martin from the Cheatham County Jail testified that she acted as the jail’s

Health Services Administrator, meaning she was a nurse at the jail. Reviewing Defendant

Robinson’s records, she testified that Defendant Robinson was being given Paxil, which is

a “mood stabilizer.” She noted that the records indicated that Defendant Robinson had been

transferred to Middle Tennessee Mental Health because she stated that she was going to

commit suicide. The doctors at the mental health facility additionally prescribed the

Defendant, a “high dose” of Depakote, a medication for mood disorders, Haldol, an anti-

psychotic medication, Cogentin, a medication to decrease the side effects of the Haldol,

Prazosin, a blood pressure medication, and Celexa, an anti-depressant. All of these

medications had side effects, including dizziness, blurred vision, nausea, vomiting, in some

cases insomnia, anxiety, and suicidal ideation.

22

Ms. Martin said that Defendant Robinson was transported to the mental health facility

a second time, two weeks after her first trip. She remained on the same medications when

she returned.

Defendant Robinson asked the court for leniency so that she could see her kids again

one day.

The trial court made findings of fact, as will be enumerated below, and it sentenced

Defendant Robinson to an effective sentence of thirty-seven years, Defendant Duncan to an

effective sentence of seventy-eight years, and Defendant Shoffner to an effective sentence

of 162 years in prison.

It is from these judgments that the defendants now appeal.

II. Analysis

On appeal, Defendant Shoffner contends that: (1) the trial court erred when it denied

his motion to dismiss because the indictment did not adequately charge him with the offense

of attempted first-degree murder. Defendant Duncan contends that: (2) the trial court

improperly denied his motion to suppress. Defendants Robinson and Shoffner both contend

that: (3) the State delayed their viewing of the evidence before trial. Defendants Duncan

and Shoffner contend that: (4) the State failed to establish a sufficient chain of custody for

the physical evidence; (5) the trial court improperly admitted cell phone tower maps; and

(6) the trial court erred when it did not instruct the jury on facilitation. Defendant Robinson

contends that: (7) the trial court erred when it denied her impeachment request. All the

defendants contend that: (8) the evidence is insufficient to sustain their convictions; and (9)

the trial court erred when it sentenced them.

A. Motion to Dismiss

Defendant Shoffner contends that the trial court erred when it denied his motion to

dismiss because the indictment did not adequately charge him with the offense of attempted

first-degree murder. He asserts that the indictment did not charge an offense in Count 1,

attempted first degree murder, because it referenced the criminal attempt statute and not the

statute for murder, citing Tennessee Code Annotated section 39-12-101 instead of 39-13-

202. Further, he asserts that the indictment did not use the correct charging language and

used the language “knowingly” instead of “intentionally” and incorrectly used the obsolete

requirement of “deliberation.” The State concedes that the indictment was not properly

drafted but states that it was sufficient to put Defendant Shoffner on notice that he was

charged with attempted first-degree murder. The State points out that the indictment states

23

that the defendant, with premeditation, attempted to kill the alleged victim and that the crime

was a Class A felony. The State notes that the only type of attempted homicide that requires

premeditation and is a Class A felony is attempted first degree murder, so therefore

Defendant Duncan was on notice.

Challenges to the validity of an indictment present questions of law and, thus, are

reviewed de novo. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). According to the United

States Constitution and the Tennessee Constitution, an indictment must provide the accused

with “the nature and cause of the accusation” being made against him/her. U.S. Const.

amend. VI; Tenn. Const. art. I, § 9. Pursuant to Tennessee Code Annotated section 40-13-

202 (2019), an indictment must present the facts in such a way that “enable[s] a person of

common understanding to know what is intended.” This Court has held that “an indictment

is valid if it provides sufficient information (1) to enable the accused to know the accusation

to which answer is required, (2) to furnish the court adequate basis for the entry of a proper

judgment, and (3) to protect the accused from double jeopardy.” Hill, 954 S.W.2d at 727

(citing State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991); VanArsdall v. State, 919 S.W.2d

626, 630 (Tenn. Crim. App. 1995); State v. Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App.

1980)).

Indictments are reviewed from an “enlightened standpoint of common sense and right

reason rather than from the narrow standpoint of petty preciosity, pettifogging, technicality

or hair splitting fault finding.” Hill, 954 S.W.2d at 728 (quoting United States v. Purvis,

580 F.2d 853, 857 (5th Cir. 1978)). In a number of cases since Hill, this Court has held that

an indictment meets statutory and constitutional requirements if it “achieve[s] the overriding

purpose of [providing] notice to the accused,” noting the Court’s “relaxation of common law

pleading requirements and its reluctance to elevate form over substance.” State v.

Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000); see also Sledge, 15 S.W.3d at 95; Crittenden

v. State, 978 S.W.2d 929, 931 (Tenn. 1998); Ruff v. State, 978 S.W.2d 95, 99 (Tenn. 1998).

For convenience, we repeat again the indicted charge of attempted first degree

murder:

The Grand Jurors for the State of Tennessee, duly elected, impaneled, sworn,

and charged to inquire, in and for the body of the County of Cheatham, in the

State aforesaid, upon their oaths, present: That ARIEL K. ROBINSON,

CHRISTOPHER A. DUNCAN AND TIM SHOFFNER heretofore, to wit: on

or about April 11, 2016, and prior to the finding of this Indictment, in the

county of Cheatham aforesaid, then and there, did unlawfully, knowingly,

deliberately, and feloniously and with premeditation, attempt to kill Frank S.

Burnette, in violation of T.C.A. 39-12-101, a Class A Felony, all of which is

against the peace and dignity of the State of Tennessee.

24

First degree murder, which is found at Tennessee Code Annotated section 39-13-

202(a)(1) and is defined as “[a] premeditated and intentional killing of another.” Criminal

attempt is defined as occurring when a person “acting with the kind of culpability otherwise

required for the offense” engages in “an act or acts in furtherance of the attempted crime.”

Tennessee Code Annotated section 39-12-101.

As Defendant Shoffner correctly points out, the indictment omits the language

“intentionally” and includes the language “knowingly” and “deliberately.” Further, the

indictment cites the criminal attempt statute, Tennessee Code Annotated section 39-12-101,

but it omits reference to the relevant first-degree murder statute.

Charging errors such as these, while a reflection of the overwhelming nature of a

prosecutor’s duties, are unnecessary, and we are in agreement with the trial court that each

office should address internally its procedures to ensure the accuracy of its indictments. That

said, the question before us today is whether the indictment in this case was fatally flawed.

We conclude that it was not.

In State v. Marshall, 870 S.W.2d 532, 536 (Tenn. Crim. App. 1993), this court held

that the failure to specifically allege an element of the offense is not fatal “if the elements

are necessarily implied from the allegations made.” (citing Hagner v. United State, 285 U.S.

427 (1932)). “The allegation that the defendant attempted to kill the victim necessarily

implies that he intended to kill her.” State v. Michael K. Christian, No. 03C01-9609-CR-

00336, 1998 WL 125562, at *5 (Tenn. Crim. App., at Knoxville, Mar. 23, 1998), perm. app.

denied (Tenn. Jan. 19, 1999). Also, a “premeditated act” is an act done “after the exercise

of reflection and judgment.” T.C.A. § 39-13-201(2) (2018). “The element of premeditation

requires a previously formed design or intent to kill.” State v. West, 844 S.W.2d 144, 147

(Tenn. 1992) (emphasis added); see also T.C.A. § 39-13-202(d) (2018) (amending the

statutory definition of premeditation to provide “it means that the intent to kill must have

been formed prior to the act itself”). Accordingly, the indictment necessarily implies the

attempted homicide was intentional.

The additional language of “deliberate” does not invalidate the indictment. If

anything, the additional element of “deliberately” created a higher burden for the State to

overcome in order to secure an indictment against the defendant for first degree murder.

Accordingly, any error in the grand jury process caused by the addition of “deliberately” in

the indictment ran to the defendant’s benefit, not his detriment.

Further, the indictment clearly states that the alleged offense occurred with

“premeditation” and was a Class A felony. The only attempted homicide offense that has

an element of premeditation and is a Class A felony is attempted first-degree murder. We

25

conclude that the indictment provided to the defendants sufficient notice of his charge for

attempted first-degree murder and provided to the trial court an adequate basis to enter a

proper judgment. Hill, 954 S.W.2d at 727. To hold otherwise would require us to engage

in the very “pettifogging, technicality or hair splitting” that our supreme court has noted that

it seeks to avoid. See id. at 728. Therefore, we hold that Defendant Shoffner’s indictment

for attempted first-degree murder was sufficient to permit Defendant Shoffner to be tried on

that charge.

B. Motion to Suppress

Defendant Duncan contends that he was seized and then questioned by law

enforcement officers without being advised of his rights pursuant to Miranda. He further

contends that he did not consent to the search of his vehicle. The crux of his argument relies

upon an assertion that the trial court erred when it found credible the law enforcement

officers’ testimony that they did, in fact, give Defendant Duncan Miranda warnings before

speaking with him and that he provided them consent to search. The State counters that the

trial court found the law enforcement officers credible and that such finding is conclusive

on appeal. We agree with the State.

On appellate review of suppression issues, the prevailing party “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 the evidence.” State v. Talley,

307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996)). Questions about “the assessment of witness credibility, the weight and value of

evidence, and the resolution of evidentiary conflicts are entrusted to the trial court” as the

trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008) (citing State v. Scarborough,

201 S.W.3d 607, 615 (Tenn. 2006)). When the trial court “makes findings of fact in the

course of ruling upon a motion to suppress, those findings are binding on appeal unless the

evidence in the record preponderates against them.” Id. (citing State v. Berrios, 235 S.W.3d

99, 104 (Tenn. 2007)). Conversely, a trial court’s conclusions of law along with its

application of the law to the facts are reviewed de novo without any presumption of

correctness. Id. (citing State v. Hayes, 188 S.W.3d 505, 510 (Tenn. 2006)). In reviewing a

trial court’s ruling on a motion to suppress, an appellate court may consider the evidence

presented both at the suppression hearing and at the subsequent trial. State v. Henning, 975

S.W.2d 290, 299 (Tenn. 1998).

The United States and Tennessee Constitutions protect a suspect from “being

compelled to give evidence against himself.” State v. Berry, 141 S.W.3d 549, 576 (Tenn.

2004) (citing U.S. Const. amend. V; Tenn. Const. art. I, § 9); see also State v. Turner, 305

S.W.3d 508, 515 (Tenn. 2010). When a defendant is in custody and subject to interrogation,

the police must first inform him of his Fifth Amendment rights in order for his confession

26

to be admissible as substantive evidence in the trial of the matter. See Miranda v. Arizona,

384 U.S. 436, 444 (1966). The trial court may not admit any statement elicited from a

defendant through police-initiated custodial interrogation unless the defendant was warned

of his Fifth Amendment rights and knowingly waived those rights. Id.

Pursuant to Miranda, law enforcement officers are required to warn a person prior to

custodial interrogation that he has the right to remain silent, that anything he says can be

used against him in a court of law, that he has the right to the presence of an attorney, and

that if he cannot afford an attorney one will be appointed for him prior to any questioning if

he so desires. Id. at 479. A defendant may waive his rights under Miranda if such waiver

is voluntary, knowing, and intelligent. State v. Echols, 382 S.W.3d 266, 280 (Tenn. 2012).

The State bears the burden of proving by a preponderance of the evidence that the defendant

waived his Miranda rights. State v. Climer, 400 S.W.3d 537, 564 (Tenn. 2013) (quoting

Berghuis v. Thompkins, 560 U.S. 370, 384 (2010)). Certain factors apply in the

determination of whether a waiver of Miranda rights qualifies as voluntary, knowing, and

intelligent: the age and background of the defendant; his education and intelligence level;

his reading and writing skills; his demeanor and responsiveness to questions; his prior

experience with the police; any mental disease or disorder; any intoxication at the time of

the waiver; and the manner, detail, and language in which the Miranda rights were

explained. Echols, 382 S.W.3d at 280-81 (citing State v. Blackstock, 19 S.W.3d 200, 208

(Tenn. 2000); State v. Callahan, 979 S.W.2d 577, 583 (Tenn. 1998)).

As the trial court noted in this case, the issue presented was one of the credibility of

the law enforcement officers, all of whom said that Defendant Duncan was given Miranda

warnings, against Defendant Duncan’s credibility, who said that they did not. Importantly,

Defendant Duncan does not assert that he did not understand the warnings or that he did not

knowingly waive his rights but simply that the law enforcement officers never gave him

Miranda warnings. Pursuant to our standard of review, questions of credibility are entrusted

to the trial judge, who found the law enforcement officers credible and gave little to no

credibility to the testimony of Defendant Duncan. As such, we conclude that the State

proved by a preponderance of the evidence that law enforcement officers provided

Defendant Duncan his Miranda warnings and that the statements he made were subsequent

to him being informed of his rights.

We further similarly rely upon the trial court’s credibility determination with regard

to Defendant Duncan’s consent to search his vehicle. Both the federal and state constitutions

offer protection from unreasonable searches and seizures with the general rule being “that a

warrantless search or seizure is presumed unreasonable and any evidence discovered subject

to suppression.” State v. Talley, 307 S.W.3d at 723, 729 (Tenn. 2010) (citing U.S. Const.

amend. IV; Tenn. Const. art. I, § 7). The search and seizure provisions of the federal and

state constitutions are “identical in intent and purpose.” State v. Christensen, 517 S.W.3d

27

60, 68 (Tenn. 2017) (quoting Sneed v. State, 423 S.W.2d 857, 860 (1968)). “Under both

constitutional guarantees, reasonableness is ‘the ultimate touchstone.’” State v. Stanfield,

554 S.W.3d 1, 9 (Tenn. 2018) (citing Brigham City, Utah v. Stuart, 547 U.S. 398, 403

(2006); State v. McCormick, 494 S.W.3d 673, 679 (Tenn. 2016)). Whether a particular

search meets the reasonableness standard “is judged by balancing its intrusion on the

individual’s . . . interests against its promotion of legitimate governmental interests.’”

Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 619 (1989) (quoting Delaware

v. Prouse, 440 U.S. 648, 654 (1979)).

A search or seizure is ordinarily unreasonable in the absence of individualized

suspicion of wrongdoing. Chandler v. Miller, 520 U.S. 305, 308 (1997). Determining

whether a particular search is “unreasonable” and, therefore, a violation of the rights

guaranteed by the Fourth Amendment “depends upon all of the circumstances surrounding

the search . . . and the nature of the search . . . itself.” State v. Turner, 297 S.W.3d 155, 160

(Tenn. 2009) (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)).

“While a search is presumptively reasonable when conducted on the basis of probable cause

and with a warrant, warrantless searches and seizures are presumptively unreasonable

regardless of whether law enforcement actually had probable cause to conduct a search.”

State v. Hamm, 589 S.W.3d 765, 771 (Tenn. 2019) (citing McCormick, 494 S.W.3d at 678-

79). This is merely a presumption, however, and there are several exceptions to the probable

cause and warrant requirements, including investigatory detentions, searches incident to a

valid arrest, seizure of items in plain view, exigent circumstances, consent searches, vehicle

searches, container searches, and searches in which the special needs of law enforcement

make the probable cause requirement impracticable. Tamez v. City of San Marcos, 118 F.3d

1085, 1093 (5th Cir. 1997) (citing David Orlin, et al., Warrantless Searches and Seizures,

85 Geo. L.J. 847, 847 (1997) (collecting cases)).

The consent exception to the warrant requirement applies when a person voluntarily

consents to a search. State v. Reynolds, 504 S.W.3d 283, 306-07 (Tenn. 2016) (citing

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Berrios, 235 S.W.3d 99, 109

(Tenn. 2007)). The State has the burden to prove that “consent was, in fact, freely and

voluntarily given.” Schneckloth, 412 U.S. at 222, (quoting Bumper v. North Carolina, 391

U.S. 543, 548 (1968)). “The pertinent question is . . . whether the [individual’s] act of

consenting is the product of an essentially free and unconstrained choice. If the

[individual’s] will was overborne and his or her capacity for self-determination critically

impaired, due process is offended.” State v. Cox, 171 S.W.3d 174, 185 (Tenn. 2005) (citing

Schneckloth, 412 U.S. at 225-26); see also Berrios, 235 S.W.3d at 109. Answering this

question of fact requires consideration of the totality of the circumstances in each case.

Schneckloth, 412 U.S. at 227; Cox, 171 S.W.3d at 184, 186. Relevant circumstances include

the time and place of the encounter, level of hostility, if any, between the police and the

individual, and the number of officers present, as well as the individual’s “age, education,

28

intelligence, knowledge, maturity, sophistication, experience, prior contact with law

enforcement personnel, and prior cooperation or refusal to cooperate with law enforcement

personnel.” Cox, 171 S.W.3d at 185 (internal quotation marks omitted).

About the consent to search in this case, the trial court, considering the totality of the

circumstances, found that Defendant Duncan’s consent was voluntary. It noted that

Defendant Duncan was twenty-six, had a criminal history involving several interactions with

law enforcement, had no type of physical or mental disability, and that the officers had

credibility testified that they did not have their weapons drawn when Defendant Duncan

gave consent. The trial court found that Defendant Duncan’s consent was voluntary, in that

it was unequivocal, specific, intelligently given, and uncontaminated by any duress or

coercion. The evidence does not preponderate against the trial court’s findings. Defendant

Duncan has not offered any evidence that would refute the trial court’s findings, other than

his assertions that the testimony of the law enforcement officers was not credible. This is

not an adequate basis requiring reversal. As such, he is not entitled to relief on this issue.

C. Viewing Evidence

Defendant Robinson contends that the State violated her due process rights and

Article 1 section 8 of the Tennessee Constitution, which affords every defendant a fair trial,

by preventing her from viewing the evidence until four days before trial. Defendant

Robinson’s attorney concedes that she was invited on two previous occasions to review the

evidence, but states that she was unable to do so because of other obligations. She asserts

that, based upon the evidence she viewed, she filed a motion to continue, which the trial

court improperly denied. The State counters first, that Defendant Robinson waived review

of the issue regarding the motion to continue because she failed to raise it in her motion for

new trial and only raised the due process claim. This, the State contends, limits our review

with respect to the trial court’s denial of the motion for continuance to a plain error review.

The State asserts that this issue does not warrant relief pursuant to a plain error review.

Defendant Shoffner contends that the State required that each of the three attorneys

be present at the same time in order to view the evidence. By the time all their schedules

allowed for a viewing, it was four days until trial. Defendant Shoffner contends that the

State’s actions constitute prosecutorial misconduct, which negatively impacted his ability to

prepare a defense. The State counters that this issue is without merit.

1. Due Process

The first issue we must address is whether Defendant Robinson’s due process rights

were infringed upon by her failure to view the evidence in the case until four days before

trial. Defendant Robinson asserts that it was not until viewing the evidence that she realized

29

that there was a chain of custody issue (in part because the evidence bags were not sealed),

so the delay in viewing the evidence was improper and impermissible.

Article 1, § 8 of the Tennessee Constitution provides as follows:

Declaration of Rights. No man to be disturbed but by law.—That no man shall

be taken or imprisoned, or disseized of his freehold, liberties or privileges, or

outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty

or property, but by the judgment of his peers or the law of the land.

The phrase, “the law of the land,” used in this section of our State Constitution, and the

phrase, “due process of law,” used in the Fifth Amendment and in the first section of the

Fourteenth Amendment to the Constitution of the United States, are synonymous phrases

meaning one and the same thing. Dearborne v. State, 575 S.W.2d 259 (Tenn.1978);

Daugherty v. State, 216 Tenn. (20 McCanless) 666, 393 S.W.2d 739 (1965), U.S. cert.

denied, 384 U.S. 435 (1966). The rights protected under these constitutional provisions can

be understood in three categories: (1) “procedural due process;” (2) the individual rights

listed in the Bill of Rights, “incorporated” against the states; and (3) “substantive due

process.” Here, Defendant Robinson suggests that her procedural due process rights were

violated when the State delayed her viewing of the evidence. When an accused alleges that

he or she has been denied a constitutional right, the accused must prove the constitutional

deprivation by a preponderance of the evidence. State v. Spurlock, 874 S.W.2d 602, 610

(Tenn. Crim. App. 1993).

Procedural due process requires state and local governments to employ fair

procedures when they deprive persons of a constitutionally protected interest in “life, liberty,

or property.” Procedural due process protections do not prevent deprivations of “life, liberty,

or property” but rather guard against “substantively unfair or mistaken deprivations . . . .”

Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972). Both the right to present evidence, including

the right to call witnesses, and the right to know opposing evidence are protected by due

process provisions.

In this case, Defendant Robinson asserts that there was potentially a chain of custody

issue related to the photographs of the victim and his truck. Defendant Robinson argues that

she was prejudiced by the discovery of the chain of custody issue concerning the

photographs unseen by her until shortly before trial. Again, Defendant Robinson’s attorney

concedes that she was invited to view the evidence on two previous occasions but was unable

to do so because of other court obligations. Upon viewing the evidence, she became aware

that there was potentially a chain of custody issue, and she filed a motion to continue the

case with the trial court.

30

Specifically, as to whether the State violated Defendant Robinson’s procedural due

process rights by the failure to provide access to the evidence sooner, we conclude that

Defendant Robinson has not proven a constitutional infringement by a preponderance of the

evidence. Importantly, the State invited Defendant Robinson’s attorney on two previous

occasions to view the evidence. While the trial court admonished the State in the future to

not wait until all parties could be present to view the evidence, and we agree, we cannot

conclude that the State’s actions violated Defendant Robinson’s constitutional rights. She

viewed the evidence before trial, and she raised the chain of custody concerns during the

trial, effectively cross-examining the State’s witnesses in this regard. Further, Defendant

Robinson’s attorney was given photographs of the victim taken by investigators at the crime

scene but was not provided other photographs taken of him at the emergency room, in part

because the State was unaware that they existed. These photographs, as well as the

photographs of the victim’s abandoned truck, are not so substantially different that the delay

caused a constitutional violation. We conclude she is not entitled to relief on this issue.

2. Motion to Continue

We next turn to decide whether the trial court erred when it denied Defendant

Robinson’s motion to continue based upon her delay in viewing the evidence. She notes

that, during her viewing of the evidence, she discovered a potential chain of custody issue,

and she saw for the first time emergency room photographs of the victim and Sheriff’s

Department photographs of the victim’s abandoned truck. The State correctly notes that the

Defendant failed to raise this issue in her motion for new trial.

[N] o issue presented for review shall be predicated upon error in the admission

or exclusion of evidence, misconduct of . . . counsel, or other action committed

or occurring during the trial of the case, or other ground upon which a new trial

is sought, unless the same was specifically stated in a motion for a new trial;

otherwise such issue will be treated as waived.

Accordingly, Defendant Robinson has waived this issue, and our review is limited to review

for plain error.

The doctrine of plain error only applies when all five of the following factors have

been established:

(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 must not have waived the issue for tactical reasons; and

(e) consideration of the error must be “necessary to do substantial justice.”

31

State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d

355, 360 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be] especially

egregious in nature, striking at the very heart of the fairness of the judicial proceeding, to

rise to the level of plain error.” Id. at 231.

The decision of whether to grant a continuance is left to the sound discretion of the

trial court and will not be reversed on appeal absent an abuse of discretion and prejudice to

the defendant. State v. Vaughn, 279 S.W.3d 584, 598 (Tenn. Crim. App. 2008) (citing State

v. Blair, 145 S.W.3d 633, 640 (Tenn. Crim. App. 2004); State v. Odom, 137 S.W.3d 572,

589 (Tenn. 2004)). On appeal, appellant bears the burden of demonstrating that harm ensued

from the denial of the requested continuance. Id. (citations omitted); see also Baxter v. State,

503 S.W.2d 226, 230 (Tenn. Crim. App. 1973). An appellant may demonstrate an abuse of

discretion by establishing that he was denied a fair trial or that one could reasonably

conclude that a different result would have been reached had the motion been granted by the

trial court. Id. (citing State v. Thomas, 158 S.W.3d 361, 392 (Tenn. 2005); State v. Goodwin,

909 S.W.2d 35, 44 (Tenn. Crim. App. 1995)).

Pursuant to our review, we conclude that Defendant Robinson has not proven that a

clear and unequivocal rule of law has been breached. When denying Defendant Robinson’s

motion to continue, the trial court found that she had not suffered any prejudice by any delay

in disclosure because she already had access to similar photographs of the victim and

because there was no prejudice in any delay in disclosure of photographs of the victim’s

abandoned truck. We conclude that the trial court did not breach any unequivocal rule of

law in its ruling. We further conclude that Defendant Robinson has not demonstrated that

the denial of the continuance prejudiced her to the extent that she was denied a fair trial or

that she would have received a different result otherwise. See, e.g., State v. Thomas Lee

Hutchison, No. E2012-02671-CCA-R3-CD, 2014 WL 1423240, at *34 (Tenn. Crim. App.,

at Knoxville, Apr. 11, 2014) (finding no error when the defendant sought a continuance on

the first day of his trial to review the prosecution’s late disclosure of photographs of the

defendant’s clothing when the defendant had the opportunity to thoroughly cross-examine

the TBI agent responsible for testing the items of clothing depicted in the photographs, and

when the defendant had not asserted that he would have discovered any additional

information about the photographs had he been granted a continuance), aff’d, 482 S.W.3d

893 (Tenn. 2016). Accordingly, we conclude that this issue does not rise to the level of plain

error, and she is not entitled to relief.

3. Prosecutorial Misconduct

Defendant Shoffner contends that the State required that each of the three attorneys

be present at the same time in order to view the evidence. By the time that all their schedules

32

allowed for a viewing with all present, it was four days before trial. Defendant Shoffner

contends that the State’s actions constitute prosecutorial misconduct, which negatively

impacted his ability to prepare a defense. The State counters that this issue is without merit.

Tennessee Rule of Criminal Procedure 16 (a)(1)(F) lists the evidence that is subject

to disclosure by the State. That includes documents and objects. The rule states that,

Upon a defendant’s request, the state shall permit the defendant to inspect and

copy or photograph books, papers, documents, photographs, tangible objects,

buildings, or places, or copies or portions thereof, if the item is within the

state’s possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

To enforce the rule, Rule 16(d)(2), provides that if there has been noncompliance, the trial

court may order the offending party to permit the discovery or inspection, grant a

continuance, prohibit the introduction of the evidence not disclosed or enter such other order

as the court deems just under the circumstances. “[T]here is no mandatory exclusion that

follows a violation.” State v. Sherri Mathis, M2009-00123-CCA-R3-CD, 2012 WL

4461767, at *37 (Tenn. Crim. App., Nashville, Sept. 26, 2012), perm. app. denied (Tenn.

Feb. 25, 2013). Indeed, exclusion of the evidence is disfavored.

[E]vidence should not be excluded except when it is shown that a party is

actually prejudiced by the failure to comply with the discovery order and that

the prejudice cannot be otherwise eradicated. See Rule 16(d)(2). The

exclusionary rule should not be invoked merely to punish either the State or

the defendant for the deliberate conduct of counsel in failing to comply with a

discovery order. The court’s contempt powers should be employed for this

purpose. Rules 12 and 16, as well as the other Rules of Criminal Procedure

[,] were adopted to promote justice; they should not be employed to frustrate

justice by lightly depriving the State or the defendant of competent evidence.

State v. Garland, 617 S.W.2d 176, 185-86 (Tenn. Crim. App. 1981); State v. James, 688

S.W.2d 463, 466 (Tenn. Crim. App. 1984); State v. Briley, 619 S.W.2d 149, 152 (Tenn.

Crim. App. 1981).

The test to be applied in reviewing a claim of prosecutorial misconduct is “whether

the improper conduct could have affected the verdict to the prejudice of the defendant.”

33

Brimmer v. State, 29 S.W.3d 497, 527 (Tenn. Crim. App. 1998) (citing Harrington v. State,

215 Tenn. 338, 385 S.W.2d 758, 759 (Tenn.1965)).

In the case under submission, the State did require that all three attorneys be present

in order to view the evidence, which the trial court stated was not the better practice; rather

the court encouraged the State to allow the individual attorneys to view the evidence as their

schedules allowed. This conduct, however, does not rise to the level of “improper conduct”

as contemplated by our rules. Further, we agree with the trial court that Defendant Shoffner

has not shown that conduct by the prosecutor, improper or not, affected the verdict to the

prejudice of Defendant Shoffner. Defendant Shoffner’s attorney, along with the other

defense attorneys, adequately, thoroughly, and effectively cross-examined the State’s

witnesses regarding the evidence. As such, we conclude that he has not met this burden and

is not entitled to relief on this issue.

D. Chain of Custody

Defendants Duncan and Shoffner contend that the State failed to establish a sufficient

chain of custody for the physical evidence. Defendant Duncan asserts that the State’s

witnesses were unable to establish that any of the physical evidence was properly collected

or stored. He notes that the officers could not offer explanations as to why the bags were

not sealed and some evidence was misplaced or missing. Defendant Shoffner agrees, noting

that none of the evidence was tested for fingerprints, gunshot residue, or gasoline residue.

He argues that it is not the duty of the defense to prove that evidence was tampered with or

substituted, but it is the burden of the prosecution to demonstrate that it is reasonably certain

that no tampering, alteration, or substitution occurred, which he says it failed to do in this

case.

The State counters first that the defendants’ arguments are waived because they were

not included in the motion for a new trial and that the defendants failed to

contemporaneously object to the admission of any evidence other than the jacket. The State

notes that, if the chain of custody was inadequate for any item, it was incumbent upon the

defendants to move to strike the evidence, which they did not do. The State notes that this

may have been a tactical decision and that this issue does not warrant review.

When addressing this issue again at the conclusion of the motion for new trial

hearing, the trial court stated:

“[I]f you go back and look at this exhibit, you show the picture of the phone

on the bag, and you can see the bag and the phone, and you can see the

description. And when [Lieutenant] Levasseur received those bags, they were

34

in the right . . . bag. So those phones were bagged correctly, according to this

exhibit.

The Court just surmises that due to the handling of the evidence by six

attorneys and various witnesses, that someone put the phone in the wrong bag.

But in looking at that in the chain of custody, there’s a condition

precedent to the introduction of any type of tangible evidence. The witness

has to identify the evidence or establish. So they either identify the evidence

or establish an unbroken chain of custody. And this is to ensure that there’s

been no tampering or loss or substitution or mistake with respect to the

evidence.

So in this case, we have lots of evidence, but the only evidence that was

ever submitted for any type of analyses was the phone, or were the phones.

And there was no testimony, and there’s not been any testimony of any type

of tampering. There has not been any testimony that anything has been

substituted.

Every person who testified as to any evidence that was placed into

evidence, they identified it. And the Court just did not find any evidence that

there was any tampering or anything of that nature, and that the chain of

custody had been established.

But again, if you go back and look at the Exhibit . . . you’ll see that

when Agent Levasseur, and he testified as to his report and testified, you’ll see

that the phones are in the correct bags at that time prior to his analyzing the

phones. And I believe his testimony was that he did not see any evidence of

any type of tampering. So I don’t find that there’s a problem there.

We review challenges to the chain of custody of evidence under the abuse of

discretion standard. State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Beech, 744

S.W.2d 585, 587 (Tenn. Crim. App. 1987). Under this standard, we will not reverse unless

the trial court “‘applied an incorrect legal standard or reached a decision [that] is against

logic or reasoning that caused an injustice to the party complaining.’” State v. Shirley, 6

S.W.3d 243, 247 (Tenn. 1999) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

As required by Rule of Evidence 901(a), it is “well-established that as a condition

precedent to the introduction of tangible evidence, a witness must be able to identify the

evidence or establish an unbroken chain of custody.” State v. Holbrooks, 983 S.W.2d 697,

701 (Tenn. Crim. App. 1998); see also, e.g., State v. Cameron, 909 S.W.2d 836, 850 (Tenn.

35

Crim. App. 1995). The purpose of the chain of custody requirement is “to demonstrate that

there has been no tampering, loss, substitution, or mistake with respect to the evidence.” See

State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993). The identity of tangible

evidence, however, need not be proven beyond all possibility of doubt, see State v.

Holloman, 835 S.W.2d 42, 46 (Tenn. Crim. App. 1992), and the State is not required to

establish facts which exclude every possibility of tampering, see State v. Ferguson, 741

S.W.2d 125, 127 (Tenn. Crim. App. 1987). The rule does not require absolute certainty of

identification. Ritter v. State, 3 Tenn. Crim. App. 372, 462 S.W.2d 247 (1970). The

evidence may be admitted when the circumstances surrounding the evidence reasonably

establish the identity of the evidence and its integrity. Holloman, 835 S.W.2d at 46.

“Reasonable assurance, rather than absolute assurance, is the prerequisite for admission.”

State v. Kilpatrick, 52 S.W.3d 81, 87 (Tenn. 2000). Absent sufficient proof of the chain of

custody, however, the “evidence should not be admitted . . . unless both identity and integrity

can be demonstrated by other appropriate means.” NEIL P. COHEN, ET AL., TENNESSEE LAW

OF EVIDENCE § 901.12, at 624 (3d ed.1995).

The State correctly contends that the Defendant Duncan risked waiving this issue by

failing to raise it in his motion for new trial. In consideration of the joint nature of this issue,

and its inclusion in Defendant Shoffner’s motion for new trial, we will, as the trial court did,

review this issue on its merits.

To the extent the State contends that the defendants waived this issue for failing to

contemporaneously object, we disagree. The defendants in this case filed a motion in limine

pretrial to exclude the evidence about which they now complain. In Goines v. State, 572

S.W.2d 644 (Tenn. 1978), the Court held that the action of a trial judge in overruling a pre-

trial motion to suppress evidence was sufficiently clear and definitive under the

circumstances of that case that a further objection to the testimony when offered at trial was

not necessary. The Court revisited this holding in the context of whether a motion in limine

preserved an issue in State v. McGhee, 746 S.W.2d 460, 462 (Tenn. 1988). In its holding,

the McGhee court quoted Goines, which stated that a trial objection would have been

preferable but, nevertheless:

“The test must be whether the issue was fairly raised, or

phrasing it another way, whether the trial judge was fairly

apprised of petitioner’s objection or given a reasonable

opportunity to consider the matter. [Citation omitted]

“It would be manifestly unjust to apply the waiver rule in

this case where the petitioner, in advance of trial, fairly apprised

the Court of the substance of his objection to the testimony and

36

where on motion for a new trial the Court was again apprised of

the petitioner’s contentions.

“Making a motion to suppress or objecting to the

testimony after the trial judge had overruled petitioner’s motion

and held that there was probable cause for the arrest, would have

been an idle ceremony and a useless gesture. The courts do not

demand that counsel engage in futile efforts. The trial judge had

ruled; the question had been resolved; there was nothing left to

decide. Further effort would have been argumentative,

repetitious and foredoomed to certain failure.” 572 S.W.2d at

649.

We adhere to the decision in that case where the record on a pretrial

suppression motion or on a motion in limine clearly presents an evidentiary

question and where the trial judge has clearly and definitively ruled.

In many instances, however, including the present case, issues are only

tentatively suggested or the record only partially and incompletely developed

in connection with a motion in limine. Counsel necessarily take some

calculated risks in not renewing objections in such cases.

Id. at 462. Accordingly, in this case, we conclude that the motion in limine filed by the

defendants on this issue preserved the issue for our review, and they did not waive the issue

by failing to contemporaneously object.

We now turn to address to what tangible evidence the defendants object. The

defendants cursorily mention multiple pieces of evidence, some of which was offered for

identification but not ever admitted into evidence. They, however, mention the following

evidence: the white cell phone found on Defendant Duncan at the time of his arrest;

evidence found in Defendant Duncan’s vehicle on April 11, 2016, including a red digital

camera, a roll of duct tape, a knit cap, and a black cell phone; evidence found in Defendant

Duncan’s vehicle on April 14, 2016, including black ski masks, a black cell phone, a charger

and four bank cards; the cell phones; and items found at Defendant Robinson’s home,

including a Braves’ cap and Adidas jacket. Of the evidence listed, the only items of tangible

evidence that were actually introduced during the trial were: the Braves’ cap and jacket and

two cell phones, one belonging to the victim and one belonging to Defendant Shoffner.

At the motion for new trial, the trial court stated:

37

The contention that the Trial Court erred when it allowed physical

evidence in, specifically, a ball cap. In Volume 6, on Page 654 of the transcript

for trial, the Defense has contended that a ball cap belonging to [Defendant]

Shoffner was allowed in, which was not identified. Nobody had any idea

where it came from.

The testimony there was Mr. Hundley, he was asked directly about

observing the baseball cap and where it was located. That witness identified

where it was, and also collected it and identified it here in Court, and it was

moved in properly with the chain of custody.

The Defense also argued in their motion that DNA was not tested,

there’s no forensic testing here except for Lieutenant Scott Levasseur with the

Dickson County Sheriff’s Office. And in that, he did a cell phone extraction.

Lieutenant Levasseur testified about how he received the cell phones, how

they were labeled.

We had testimony from Agent Lamping, [Mr.] Hundley, and

Lieutenant Heflin about the collection of those cell phones. There was nothing

to indicate that they had been tampered with or misidentified at the time that

the forensic testing was completed by Lieutenant Levasseur.

Professor Neil Cohen and his colleagues have aptly summarized the rule:

The concept of a “chain” of custody recognizes that real evidence may be

handled by more than one person between the time it is obtained and the time

it is either introduced into evidence or subjected to scientific analysis.

Obviously, any of these persons might have the opportunity to tamper with,

confuse, misplace, damage, substitute, lose and replace, or otherwise alter the

evidence or to observe another doing so. Each person who has custody or

control of the evidence during this time is a “link” in the chain of custody. In

theory at least, testimony from each link is needed to verify the authenticity of

the evidence and to show that it is what it purports to be. Each link in the

chain testifies about when, where, and how possession or control of the

evidence was obtained; its condition upon receipt; where the item was kept;

how it was safeguarded, if at all; any changes in its condition during

possession; and when, where and how it left the witness’s possession.

NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE § 9.01[13][c] (5th ed.2005) (footnotes

omitted).

38

Even though each link in the chain of custody should be sufficiently established, this

rule does not require that the identity of tangible evidence be proven beyond all possibility

of doubt; nor should the State be required to establish facts which exclude every possibility

of tampering. Scott, 33 S.W.3d at 760. An item is not necessarily precluded from admission

as evidence if the State fails to call all of the witnesses who handled the item. See State v.

Johnson, 673 S.W.2d 877, 881 (Tenn. Crim. App. 1984). Accordingly, when the facts and

circumstances that surround tangible evidence reasonably establish the identity and integrity

of the evidence, the trial court should admit the item into evidence. On the other hand, if

the State fails to offer sufficient proof of the chain of custody, the “evidence should not be

admitted . . . unless both identity and integrity can be demonstrated by other appropriate

means.” Scott, 33 S.W.3d at 760 (quoting COHEN ET. AL., TENNESSEE LAW OF EVIDENCE §

901.12, at 624 (3d ed. 1995)).

We first conclude that both the black Adidas jacket and Braves cap were identified

by law enforcement officers. Law enforcement officers saw those garments, similar to or

the same as the ones worn by Defendant Shoffner in the video surveillance at the ATMs, at

Defendant Robinson’s house when they went to speak with her. They collected those items,

placed them in Lieutenant Heflin’s control, where they remained until checked in to a new

evidence room. Mr. Hundley described the uniqueness of the hat specifically, and he said

that both items of clothing appeared to be the same as the ones he gathered at Defendant

Robinson’s house. This is sufficient to “identify” the items for chain of custody purposes,

and the trial court did not abuse its discretion by admitting this evidence. In further support

of our holding, the chain was also established in that Lieutenant Heflin described how the

items were kept in a box labeled with this case number, which he stored in his office. His

office itself was kept locked when he was not present and was in a locked section of a

building accessible only with a pass card. When the Sheriff’s Department created an

evidence room, he placed the box in the care and control of the evidence custodian up until

trial. There is no evidence that this evidence was tampered with or stored incorrectly.

We similarly conclude that the trial court did not abuse its discretion when it

determined that there was adequate evidence establishing the identity or chain of custody of

the other evidence admitted. The officers who gathered the phones identified them and

stated they put them into evidence bags. Agent Lamping put a sticker on the phone

identifying it. Lieutenant Levasseur offered photographs of the evidence bags and cell

phones, which showed that the appropriate phone was in the appropriate bag at the time he

examined the phones. Each phone contained information, and or evidence, evincing to him

it belonged. For instance, Defendant Shoffner’s phone was associated with his email

address. The victim’s phone, which he identified, had information and photographs

belonging to the victim. Both phones used respectively the known phone numbers of

Defendant Shoffner and the victim.

39

Finally, the trial court did not abuse its discretion when it admitted any additional

evidence. The State offered multiple photographs showing where and how the evidence was

gathered, officers identified the evidence, and the evidence was stored using the procedures

previously described. Further, even if we were to hold that there was error in admitting

evidence, we would deem any error harmless. We apply a harmless error analysis to

“virtually all evidentiary errors . . . .” State v. James, 81 S.W.3d 751, 763 (Tenn. 2002); see

Tenn. R. Crim. P. 52(a) (“No conviction shall be reversed on appeal except for errors that

affirmatively appear to have affected the result of the trial on the merits.”); Tenn. R. App.

P. 36(b) (“A final judgment from which relief is available and otherwise appropriate shall

not be set aside unless, considering the whole record, error involving a substantial right more

probably than not affected the judgment or would result in prejudice to the judicial

process.”). As this Court has previously stated:

Whether error in the admission of evidence is prejudicial is gauged by the

substance of the evidence, its relation to other evidence, and the peculiar facts

and circumstances of the case, and whether such admission is sufficient

ground for reversal depends on the facts in each case; and the appellate court

will consider the record as a whole in determining the question of prejudice or

reversibility.

Blankenship v. State, 219 Tenn. 355, 410 S.W.2d 159, 161 (1966) (quoting 24B C.J.S.

CRIMINAL LAW § 1915(2)).

As stated, the trial court did not abuse its discretion in admitting key pieces of

evidence, as the evidence was either identified or the chain of custody established. The

admission of any evidence that was not identified or for which the chain of custody was not

established, is harmless.

E. Cell PhoneTower Maps

The exhibit about which the defendants complain was created by a State witness,

Thomas Bell, using a program called “Penlink.” It represented an aerial view of the county,

and it included locations of the victim’s home, Defendant Robinson’s home, and other

locations relevant to this case, such as ATM locations. Layered on top of the map locations,

were pie shapes that represented the locations of the cell phone towers that were “pinged”

by the phones involved in this case. Mr. Bell testified as an analyst and acknowledged that

he could not explain technical details about cell tower transmission. He explained that cell

towers are three-sided, and he used the pie shape to show the sector of the tower that the cell

phone was on when the call from the cell phone was placed. The shaded areas indicated the

direction the calls came from and did not necessarily indicate the area within which the cell

phone was located.

40

Defendant Duncan and Defendant Shoffner contend that the trial court erred when it

admitted this exhibit. Defendant Shoffner contends that the exhibit that the State offered

was “unfairly prejudicial due to its inaccuracy and misleading depiction of the location of

the Defendants.” He asserts that the pie shape diagrams did not reflect the distance capacity

of the cell phone tower and were instead drawn with no reference to scale other than angle,

giving the visual impression that any cell phone pinging a particular tower was in a specific

geographic location represented by the pie shape. Defendant Duncan contends that the

unfair prejudice outweighs by any probative value of the evidence. He notes that the pie

shape wedge on the diagram indicated the side of the tower off which the cell phone pinged

and did not indicate the location of the cell phone at the time that it pinged off the tower.

Further, the pie shape did not represent the proximity of the cell phone to the cell phone

tower. This pie shape, he contends, was prejudicial and misleading and inflammatory. He

further asserts that he was prejudiced by his late-receipt, five days before trial, of the exhibit.

Prior to Mr. Bell’s testimony, and outside the presence of the jury, the trial court

addressed Defendant Shoffner’s motion in limine to exclude the cell phone location

mapping. The trial court first found that the defense had in their possession the cell phone

data for “some time.” It then cited to State v. Timothy Leron Brown, No. M2017-00904-

CCA-R3-CD, 2019 WL 1514551, at *46 (Tenn. Crim. App., at Nashville, Apr. 8, 2019), no

Tenn. R. App. P. 11 application filed, which held that a layperson could plot out different

type of cell sites using a defendant’s cell phone records and, from that, draw an inference.

The trial court went on to state:

And what he’s testifying, and that’s the reason why I asked him, is that

these are cell phone towers . . . the cell phone records that he took, that the cell

phone hit that tower. And from that, you can infer that the person was within

the vicinity of that tower.

Certainly, he can’t say two miles, five miles, or anything like that. And

you certainly can cross examine. He’s been very forthright and upcoming

about, he can’t tell, but it’s in the vicinity with that.

So at this point in time, you’re looking at, and then you’re going further

and saying, well, this exhibit is going to be prejudicial. And certainly if you

have some type of . . . I guess, a computer animation or something similar to

that that he created. And it’s based upon what his testimony is going to be.

And so it could be excluded if its probative value is substantially

outweighed by any unfair prejudice. So basically, what this is showing is the

location of the towers, which he’s going to testify to. It’s showing the phone

41

calls that were made based on the reports, cell phone reports he received from

law enforcement. . . .

And he’s going to say that that cell phone, on that day or that night, hit

this cell phone tower. . . .

So basically, this is showing everything he’s going to testify to.

Certainly, during cross examination, you can bring out, fine, we have a cell

phone tower at this location. You’re saying this particular cell phone hits this

tower. Does that mean that you can say this cell phone is within one mile of

this tower? No, ma’am, I can’t. Can you say that it was within five miles? No,

ma’am, I can’t. Can you say it’s within ten miles? No, ma’am, I can’t.

So you certainly can inquire as to that. So I don’t find that it would be

unduly prejudicial. And so I’m going to allow it to come in.

Generally, “[a]dmission of evidence is entrusted to the sound discretion of the trial

court, and a trial court’s ruling on evidence will be disturbed only upon a clear showing of

abuse of discretion.” State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004). The Tennessee

Rules of Evidence provide that all “relevant evidence is admissible,” unless excluded by

other evidentiary rules or applicable authority. Tenn. R. Evid. 402. Of course, “[e]vidence

which is not relevant is not admissible.” Id. Relevant evidence is defined as 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. Even relevant evidence, however, “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.” Tenn. R. Evid. 403.

Whether or not to permit demonstrative evidence of this sort generally rests within

the sound discretion of the trial judge. E.g., Hughes v. State, 126 Tenn. 40, 148 S.W. 543,

551 (Tenn. 1912) (holding that, “[Demonstrative] evidence is, of course, largely in the

discretion of the trial judge, who may in a proper case refuse to permit his court room to be

littered with cumbrous structures that should be represented by maps, diagrams, or

photographs.”); State v. Underwood, 669 S.W.2d 700, 704 (Tenn. Crim. App. 1994)

(holding that, “[W]e see no reason why [demonstrative] evidence is not admissible within

the discretion and control of the trial judge.); State v. Douglas Marshall Mathis, M2002-

02291-CCA-R3-CD, 2004 WL 392710, at *10 (Tenn. Crim. App., at Nashville, Mar. 3,

2004) (citations omitted), perm. app. denied (Tenn. Oct. 11, 2004). This court has further

instructed that “‘[d]emonstrative evidence is admissible only if relevant under [Tenn. R.

Evid.] 401.’” State v. Coulter, 67 S.W.3d 3, (Tenn. Crim. App. 2001) (quoting Ronald

42

Bradford Waller v. State, No. E1999-02034-CCA-R3-PC, 2000 WL 982103 (Tenn. Crim.

App., Knoxville, July 18, 2000), perm. app. denied (Tenn. Mar. 5, 2001)). “‘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; see also State v. Kennedy, 7 S.W.3d 58, 68

(Tenn. Crim. App. 1999). 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.” The trial court has the discretion to determine whether the proffered

evidence is relevant; thus, we will not overturn the trial court’s decision absent an abuse of

discretion. State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995). Rule 403 offers

additional grounds for the exclusion of relevant evidence: “Although 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.” Like all evidence,

the demonstration must be relevant evidence, and its probative value must not be

substantially outweighed by the danger of unfair prejudice and it must not be misleading.

See e.g., Christopher Lovin v. State, No. E2009-00939-CCA-RM-PC, 2010 WL 4540066,

at *11 (Tenn. Crim. App., at Knoxville, Nov. 10, 2010), perm. app. denied (Tenn. Apr. 14,

2011).

If the court, in its discretionary authority, finds that the probative value is

substantially outweighed by its prejudicial effect, the evidence may be excluded. Tenn. R.

Evid. 403 (“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice . . . .”). Clearly, Rule 403 is a

rule of admissibility, and it places a heavy burden on the party seeking to exclude the

evidence. State v. James, 81 S.W.3d 751, 761 (Tenn. 2002) (citing See Roy v. Diamond, 16

S.W.3d 783, 791 (Tenn. Ct. App. 1999)). “Excluding relevant evidence under this rule is an

extraordinary remedy that should be used sparingly and persons seeking to exclude

otherwise admissible and relevant evidence have a significant burden of persuasion.” Id.

(citing White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App. 1999)).

This court has recognized that a layperson could plot cell sites listed in a defendant’s

cell phone records on a map and draw an inference that the defendant traveled near the cell

towers and that, as a result, such testimony does not require the specialized knowledge

contemplated by Tennessee Rule of Evidence 702. See e.g., State v. Johnny Lorenzo Wade,

No. W2017-00933-CCA-R3-CD, 2018 WL 3414471, at *11 (Tenn. Crim. App., at Jackson,

July 13, 2018), perm. app. denied (Tenn. Nov. 15, 2018); State v. Dominique Greer, No.

E2015-00922-CCA-R3-CD, 2017 WL 2233647, at *16 (Tenn. Crim. App., at Knoxville,

May 17, 2017), no. Tenn. R. App. P. 11 application filed; State v. Clarence D. Hayes, No.

M2008-02689-CCA-R3-CD, 2010 WL 5344882, at *10 (Tenn. Crim. App., at Nashville,

Dec. 23, 2010), perm app. denied (Tenn. May 25, 2011). This Court has held that cell phone

43

tower location data allows the inference that the cell phone was in the vicinity of the tower

at the time it pinged the tower. Brown, 2019 WL 1514551, at *46.

In the case under submission, the State offered a cell tower map that included pie

wedges that showed the side of the tower that the calls were routed and did not indicate how

close the relevant cell phones were to the tower. We conclude first that the trial court did

not abuse its discretion when it found that this demonstrative evidence was relevant. The

defendants’ phones in this case pinged off towers at a time and from a direction that showed

that the phones were within vicinity to relevant locations, namely the victim’s home and

locations where the victim’s ATM card was located. The data indicated that the phones

were pinging off a tower near Defendant Robinson’s home both before and after these events

and that the phones were not using that same tower during the time of these events.

Because we agree with the trial court that the evidence was relevant, we now turn to

decide whether the defendants have met their “significant burden of persuasion” that the

trial court abused its discretion when it determined that the otherwise admissible evidence

was not misleading. We conclude that the defendants have not so proved. The evidence

was admitted through a lay witness who admitted that he did not have expertise in cell phone

technology. He thoroughly explained, during direct and cross-examination, what the pie

shapes on the map depicted and that he could not say how close the cell phones were to the

towers when they pinged the towers. We conclude, as did the trial court, that this evidence

was not misleading, and the trial court did not err when it allowed the State to offer it. As a

final note, given the weight of the evidence against the defendants, including actual

surveillance footage of one of them when the victim’s ATM card was used, we conclude

that any error in this evidence’s admission would be harmless.

F. Facilitation Instruction

Defendant Duncan and Defendant Shoffner next contend that the trial court erred

when it did not instruct the jury on facilitation. At trial, before the jury was charged, the

defendants orally requested that the trial court instruct the jury on the lesser-included

offenses of solicitation and facilitation. The trial court declined, and the defendants now

appeal, contending that this was error. The State counters that the defendants have waived

this issue by failing to formally request the instructions in writing and that the issue does not

warrant plain error review.

Upon written request by either party, “the trial judge shall instruct the jury as to the

law of each offense specifically identified in the request that is a lesser[-]included offense

of the offense charged in the indictment[.]” T.C.A. § 40-18-110(a) (2019). In determining

whether an offense is a lesser-included offense of the charged crime, the trial court should

consider the evidence “in the light most favorable to the existence of the lesser-included

44

offense.” State v. Ely, 48 S.W.3d 710, 722 (Tenn. 2001). When a defendant is charged with

a felony through criminal responsibility for the actions of another, facilitation of the felony

is a lesser-included offense. State v. Fowler, 23 S.W.3d 285, 288 (Tenn. 2000). In the

absence of a written request, a trial court may instruct a jury on lesser-included offenses, but

a defendant is not entitled to such an instruction, and the failure of the trial court to give such

an instruction is waived as an issue on appeal. T.C.A. § 40-18-110(b), (c). However, the

issue may be reviewed for plain error. State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006).

We conclude the defendants have failed to establish that he is entitled to plain error

relief. We may consider an issue to be plain error when all five of the following factors are

met:

(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. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted);

see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for

determining plain error). Furthermore, the “‘plain error’ must be of such a great magnitude

that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (quoting

United States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)).

The trial court’s failure to instruct the jury on solicitation and facilitation does not

rise to the level of plain error because consideration of the issue is not necessary to do

substantial justice. Considering the weight of the evidence presented and the defenses

presented by the parties, we conclude that the omission of the solicitation and facilitation

instructions did not affect the outcome of the trial. As such, consideration of this issue is

not necessary to do substantial justice. The defendants are not entitled to relief on this issue.

G. Impeachment Request

Defendant Robinson contends that the trial court erred when it denied her

impeachment request. She contends that one of the law enforcement officers who testified

was fired from employment on May 16, 2016 for having sent and or received inappropriate

text messages with a confidential informant. She contends that her counsel should have

been allowed to question this witness regarding his firing because such evidence was

relevant to the witness’s truthfulness. The State contends that the trial court did not abuse

its discretion in this regard.

45

During the trial, a law enforcement witness was called to testify whom was no longer

with the sheriff’s office. The trial court held a jury-out hearing, during which the parties

explored the basis for his termination. The trial court ruled that the line of questioning

regarding the witness’s termination was not relevant and, as such, inadmissible.

A defendant has the right to confrontation under the Sixth Amendment of the United

States Constitution and Article I, Section 9, of the Tennessee Constitution. See State v.

Smith, 893 S.W.2d 908, 924 (Tenn. 1994); see also State v. Black, 815 S.W.2d 166, 177

(Tenn. 1991).

“[A] criminal defendant states a violation of the [federal] Confrontation

Clause by showing that he was prohibited from engaging in otherwise

appropriate cross-examination designed to show a prototypical form of bias

on the part of the witness, thereby exposing to the jury the facts from which

jurors could appropriately draw inferences relating to the reliability of the

witnesses.”

Black, 815 S.W.2d at 177 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)).

Generally speaking, a denial of the right to an effective cross-examination is

“constitutional error of the first magnitude and amounts to a violation of the basic right to a

fair trial.” State v. Hill, 598 S.W.2d at 819. The propriety, scope, manner and control of the

cross-examination of witnesses, however, rests within the discretion of the trial court. Coffee

v. State, 188 Tenn. 1, 4, 216 S.W.2d 702, 703 (1948); Davis v. State, 186 Tenn. 545, 212

S.W.2d 374, 375 (1948). Appellate courts may not disturb limits on cross-examination

except when there has been an unreasonable restriction on the right. State v. Fowler, 213

Tenn. 239, 253, 373 S.W.2d 460, 466 (1963); State v. Johnson, 670 S.W.2d 634, 636

(Tenn.Crim.App.1984).

Tennessee Rule of Evidence 608(b) allows the admission of specific instances of

conduct under certain circumstances. The rule provides, in part, as follows:

Specific Instances of Conduct.—Specific instances of conduct of a witness for

the purpose of attacking or supporting the witness’s credibility, other than

convictions of crime as provided in Rule 609, may not be proved by extrinsic

evidence. They may, however, if probative of truthfulness or untruthfulness

and under the following conditions, be inquired into on cross-examination of

the witness concerning the witness’s character for truthfulness or

untruthfulness or concerning the character for truthfulness or untruthfulness

of another witness as to which the character witness being cross-examined has

testified. The conditions which must be satisfied before allowing inquiry on

46

cross-examination about such conduct probative solely of truthfulness or

untruthfulness are:

(1) The court upon request must hold a hearing outside the jury’s

presence and must determine that the alleged conduct has

probative value and that a reasonable factual basis exists for the

inquiry; [and]

(2) The conduct must have occurred no more than ten years

before commencement of the action or prosecution, but

evidence of a specific instance of conduct not qualifying under

this paragraph (2) is admissible if the proponent gives to the

adverse party sufficient advance notice of intent to use such

evidence to provide the adverse party with a fair opportunity to

contest the use of such evidence and the court determines in the

interests of justice that the probative value of that evidence,

supported by specific facts and circumstances, substantially

outweighs its prejudicial effect[.]

Tenn. R. Evid. 608(b)(1) & (2). This rule authorizes proof of a prior bad act which is

relevant to a person’s character for truthfulness or untruthfulness.

Having reviewed the transcript and briefs, we do not believe that Defendant Robinson

has proven that the trial court unreasonably restricted her right to cross-examine the witness.

The evidence surrounding his termination was not relevant in that it made any fact in

evidence that was of consequence more probable or less probable. Further, the text messages

exchanged, while “explicit,” were not related to this case. There was no evidence that the

text messages were concealed or that the officer made false statements or lied about the

messages. We acknowledge that courts of this state have determined that evidence that a

police officer’s solicitation of an underage girl could be properly used for impeachment, but

we are bound by our standard of review, which heavily defers to the trial court’s discretion.

That standard is whether the trial court abused its discretion in prohibiting this line of

questioning. We determine that, given the evidence presented during the jury-out hearing

and the arguments of the parties, the trial court did not abuse its discretion. Defendant

Robinson is not entitled to relief on this issue.

H. Sufficiency of Evidence

All the defendants contend that the evidence is insufficient to sustain their

convictions. Defendants Robinson and Duncan contend that the evidence was insufficient

to support their identities as the perpetrators because of the unreliability of the victim’s

47

identification. Defendant Shoffner contends that the evidence did not prove that he was

guilty under a theory of criminal responsibility.

When an accused challenges the sufficiency of the evidence, this court’s standard of

review is whether, after considering the evidence in the light most favorable to the State,

“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 Tenn. R. App. P.

13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d

247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon direct

evidence, circumstantial evidence, or a combination of both direct and circumstantial

evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing

State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct

evidence, a criminal offense may be established exclusively by circumstantial evidence.

Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be

given to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, and

the extent to which the circumstances are consistent with guilt and inconsistent with

innocence, are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn.

2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “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)).

In determining the sufficiency of the evidence, this court should not re-weigh or

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Nor may this Court substitute its inferences for those drawn by the trier of fact from the

evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286

S.W.2d 856, 859 (Tenn. 1956)). “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

are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A

guilty verdict by the jury, approved by 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). The Tennessee 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.

48

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,

527 (Tenn. 1963)). This court must afford the State of Tennessee the “‘strongest legitimate

view of the evidence’” contained in the record, as well as “‘all reasonable and legitimate

inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting

State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a

defendant removes the presumption of innocence and raises a presumption of guilt, the

convicted criminal defendant bears the burden of showing that the evidence was legally

insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.

2000) (citations omitted).

We agree that the identity of the perpetrator is an essential element of any crime, and

therefore must be proven by the State beyond a reasonable doubt. State v. Rice, 184 S.W.3d

646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975). We

would also note that issues of identity and credibility are classic jury questions. State v.

Gregory Mullins, No. E2004-02314-CCA-R3-CD, 2005 WL 2045151, at *5 (Tenn. Crim.

App., at Knoxville, Aug. 25, 2005), no Tenn. R. App. P. 11 application filed. And, as stated

above, questions concerning the credibility of the witnesses are resolved by the trier of fact.

Evans, 108 S.W.3d at 236. This court does not second-guess the weight, value, or credibility

afforded to the evidence by the jury. That said, there was sufficient evidence presented to

prove Defendant Robinson’s and Defendant Duncan’s identity. The victim testified that

neither defendant wore a face covering for the duration of the attack, and he identified them

in court. Defendant Robinson lived with Defendant Shoffner, who was the victim’s former

stepson. She was gone from her house on the evening in question, having hired a babysitter

to care for her child. There were multiple phone calls between her cell phone and the cell

phones of Defendants Duncan and Shoffner, including through the night of the attack.

Clothing matching the description of the clothing seen worn by Defendant Shoffner while

he was using the victim’s ATM card was found in Defendant Robinson’s home, along with

the victim’s security system that was stolen during the attack. Law enforcement officers

found the victim’s cell phone and paperwork on Defendant Duncan’s person and the victim’s

digital camera in Defendant Duncan’s vehicle. Defendant Duncan is depicted in a

surveillance video attempting to use the victim’s ATM card. Therefore, we conclude that

the State presented sufficient evidence of identity to support the defendants’ convictions.

We similarly conclude that there was sufficient evidence of Defendant Shoffner’s

criminal responsibility. Defendant Shoffner, who was Defendant Robinson’s boyfriend and

lived with her, was the victim’s former stepson. Based upon the victim’s statements

regarding the perpetrators’ gaining his ATM card, law enforcement officers obtained the

victim’s bank records and surveillance videos from the transactions using his card on the

night in question. In one of those videos, Defendant Shoffner is seen driving a truck

matching the description of the victim’s truck that was stolen, using the victim’s ATM card

and wearing a distinctive Braves cap and jacket. When officers went to Defendant

49

Robinson’s house later that day, where Defendant Shoffner was located, they saw and

confiscated the same cap and jacket. Cell phone records showed that the cell phone

attributed to Defendant Shoffner communicated with those of Defendant Robinson and

Duncan during the evening of this attack. It also “pinged” to towers located near the relevant

locations in this case around the time of the events of this case.

We conclude that the evidence, viewed in the light most favorable to the State, clearly

proved the defendants’ identities and Defendant Shoffner’s criminal responsibility.

I. Sentencing

All three defendants contend that the trial court erred when it sentenced them. For

the Class A felony convictions—aggravated arson and especially aggravated kidnapping—

the trial court sentenced Defendant Robinson, a Range I offender, to concurrent twenty-five-

year sentences. For the Class B felony convictions—attempted second degree murder and

aggravated robbery—the trial court sentenced Defendant to concurrent twelve-years

sentences. For the Class D felony theft conviction, the trial court sentenced Defendant

Robinson to four-years. The trial court ordered that the effective twenty-five-year sentence

run consecutively to the effective twelve-year sentence and concurrently to the four-year

sentence, for a total effective sentence of thirty-seven years. On appeal, Defendant Robinson

contends that she “is a mitigated offender whose sentence should have been run concurrently

as a probationary sentence.” She notes that she had no prior felonies, no gang affiliations,

and is the single mother of two children.

The trial court sentenced Defendant Duncan as a Range I offender to fifteen years for

the Class B felonies—attempted second degree murder and aggravated robbery and to eight

years for theft. The trial court sentenced him as a Range II offender to twenty years each

for both Class A felony convictions—aggravated arson and aggravated kidnapping. The

trial court ordered that all of his sentences run consecutively for a total effective sentence of

seventy-eight years. On appeal, he contends that the trial court erred when it sentenced him

consecutively and “that any sentences imposed should have been imposed to run

concurrently.”

The trial court sentenced Defendant Shoffner as a Range II, persistent offender. It

sentenced him to fifty years for each Class A felony conviction—aggravated arson and

aggravated kidnapping, and to twenty-five years for each Class B felony convictions—

attempted second-degree murder and aggravated robbery. It sentenced him to twelve years

for the theft conviction. The trial court ordered that all these sentences be served

consecutively for a total effective sentence of 162 years. On appeal, Defendant Shoffner

does not contest the consecutive nature of his sentences but contends that the trial court erred

when it applied several enhancement factors when sentencing him.

50

The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments

describe the process for determining the appropriate length of a defendant’s sentence. Under

the Act, a trial court may impose a sentence within the applicable range as long as the

imposed sentence is consistent with the Act’s purposes and principles. T.C.A. § 40-35-

210(c)(2), (d) (2019); see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).

In State v. Bise, the Tennessee Supreme Court announced that “sentences imposed

by the trial court within the appropriate statutory range are to be reviewed under an abuse of

discretion standard with a ‘presumption of reasonableness.’” 380 S.W.3d 682, 708 (Tenn.

2012). A finding of abuse of discretion “‘reflects that the trial court’s logic and reasoning

was improper when viewed in light of the factual circumstances and relevant legal principles

involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting

State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record

must be void of any substantial evidence that would support the trial court’s decision.

Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001); State v. Grear, 568 S.W.2d 285, 286 (Tenn.

1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court

should 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. In other words, so long as the trial court

sentences a defendant within the appropriate range and properly applies the purposes and

principles of the Sentencing Act, its decision will be granted a presumption of

reasonableness. Id. at 707.

In determining a specific sentence within a range of punishment, the trial court should

consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the general assembly set the

minimum length of sentence for each felony class to reflect the relative

seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as

appropriate, by the presence or absence of mitigating and enhancement factors

set out in §§ 40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c) (2019). The trial court must consider: (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 Tennessee Code Annotated sections 40-35113

51

and -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 made in the defendant’s own behalf about sentencing. See T.C.A. § 40-35-210

(2014); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

“[T]he trial court is free to select any sentence within the applicable range so long as

the length of the sentence is ‘consistent with the purposes and principles of [the Sentencing

Act].’” Id. at 343. The trial court’s “misapplication of an enhancement or mitigating factor

does not invalidate the sentence imposed unless the trial court wholly departed from the

1989 Act, as amended in 2005.” Bise, 380 S.W.3d at 706. “[Appellate Courts are] bound

by a trial court’s decision as to the length of the sentence imposed so long as it is imposed

in a manner consistent with the purposes and principles set out in sections -102 and -103 of

the Sentencing Act.” State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008).

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may order

sentences to run consecutively if it finds any one of the statutory criteria by a preponderance

of the evidence. As it relates to this case, the trial court found the following criteria

applicable: “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 . . . (6) The defendant is sentenced for an offense committed while on probation

. . . .” T.C.A. § 40-35-115(b)(4), (6). The imposition of consecutive sentencing, however,

is subject to the general sentencing principles that the overall sentence imposed “should be

no greater than that deserved for the offense committed” and that it “should be the least

severe measure necessary to achieve the purposes for which the sentence is imposed [.]”

T.C.A. § 40-35-103(2), (4). We review a trial court’s decision to impose consecutive

sentences for an abuse of discretion with a presumption of reasonableness. State v. Pollard,

432S.W.3rd 851, 860 (Tenn. 2013).

Our case law clearly reflects that in order to impose consecutive sentencing based

upon finding that a defendant is a dangerous offender, a court must also find that “(1) the

sentences are necessary in order to protect the public from further misconduct by the

defendant and [that] (2) ‘the terms are reasonably related to the severity of the offenses.’”

State v. Moore, 942 S.W.2d 570, 574 (Tenn. Crim. App. 1996) (quoting Wilkerson, 905

S.W.2d at 938); see also State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). “Where . . . the

trial court fails to provide adequate reasons on the record for imposing consecutive

sentences, the appellate court should neither presume that the consecutive sentences are

reasonable nor defer to the trial court’s exercise of its discretionary authority” and can either

conduct a de novo review to determine if an adequate basis exists for consecutive sentences

or remand the case to the trial court for consideration of the requisite Wilkerson factors.

Pollard, 432 S.W.3d at 864-65.

52

When sentencing the defendants, the trial court considered all the aforementioned

applicable considerations. The trial court thoroughly reviewed the facts of the case,

including that it was clear that all three defendants planned this robbery with the intent to

kill the victim. She noted that their actions were cold and that they lacked emotion during

the trial and during sentencing. The court noted that Defendant Robinson never expressed

remorse or apologized to the victim. He further noted that Defendant Robinson had been

caught vandalizing the jail. The trial court stated:

[T]he things I look at [are] this: That . . . [Defendant Robinson], [Defendant]

Duncan, and [Defendant] Shoffner, you all have past criminal histories.

[Defendant] Shoffner, your criminal history is more than [Defendant] Duncan.

And [Defendant] Robinson, you don’t have a criminal history, but look at the

people you are hanging out with. You’ve got babies with somebody who’s in

one of these gangs or whatever.

And then when you come in the jail, you got all these jail write-ups.

You know, it was always my belief, and it still is, is I’m not going to reward

anybody for being good in jail. You’re supposed to be good in jail. But I sure

will punish somebody who’s bad in jail.

So that just shows me what type of person that you all are, you get these write-

ups . . . at TDOC, you get those write-ups in jail. You’re not going to conform

to society. Society needs to be protected from you people.”

The trial court went on to make specific findings for each defendant, as articulated

below.

1. Defendant Robinson

Defendant Robinson contends that the trial court erred when it sentenced her to

consecutive sentences and when it denied her probation. The State counters that the trial

court was within its discretion to sentence her consecutively and that she was not eligible

for probation.

The trial court found that Defendant Robinson had no prior criminal history and that

she should be sentenced as a Range I offender. A Range I sentence is as follows:

(1) For a Class A felony, not less than fifteen (15) nor more than twenty-five

(25) years; (2) For a Class B felony, not less than eight (8) nor more than

twelve (12) years; (3) For a Class C felony, not less than three (3) nor more

53

than six (6) years, (4) for a Class D felony, not less than two (2) nor more than

four (4) years . . . .

T.C.A. § 40-35-112 (2019). The trial court applied the following enhancement factors to

Defendant Robinson:

I find 2, that the defendant was a leader in the commission of an offense

involving two or more criminal actors. It’s quite apparent from the testimony

that you were calling the shots. You were on the phone talking to Mr. Shoffner

about the PIN number. You were directing [Defendant] Duncan what to do.

So you were calling the shots on that. So I find you were a leader in the

commission of that offense.

Number 6: Again, the personal injuries inflicted upon or the amount of

damage to the property sustained by or taken from the victim was particularly

great. Again, you burned down this man’s life. You just destroyed this man’s

life.

Number 9: The defendant possessed or employed a firearm. And,

again, that applies only to Counts I and II. It does not apply to the other counts.

Number 10: No hesitation about committing a crime when the risk to

human life was high. Again, you all were just cold. [Defendant] Robinson,

you are cold. Just cold, cold, cold. Going in there and be able to do that.

Especially with somebody who your attorney argues, well, she doesn’t have a

lot of criminal history or whatever.

That’s a pretty -- pretty high place to start, right there, walk in there

with a gu

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