The opinion
04/12/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 13, 2024
STATE OF TENNESSEE v. BRITTANY LINDA LOU DAVIS
Appeal from the Circuit Court for Lincoln County
No. 21-CR-65 Forest A. Durard, Jr., Judge
No. M2023-00225-CCA-R3-CD
The defendant, Brittany Linda Lou Davis, appeals her Lincoln County Circuit Court jury
convictions of delivering and selling .5 grams or more of methamphetamine, arguing that
the trial court erred by admitting a recording of the controlled buy, that the evidence was
insufficient to support her convictions, and that the trial court erred by sentencing her as a
Range III offender. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, P.J., and TIMOTHY L. EASTER, J., joined.
Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, Brittany Linda Lou Davis.
Jonathan Skrmetti, Attorney General and Reporter; Brooke A. Huppenthal, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Amber Sandoval and
Matt Goney, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The Lincoln County Grand Jury charged the defendant by presentment with
one count each of selling .5 grams or more of methamphetamine in a drug-free zone and
delivering .5 grams or more of methamphetamine in a drug-free zone.
At the September 2021 trial, Investigator Tammy McDonald of the Lincoln
County Sheriff’s Department (“LCSD”) testified that on July 10, 2020, she and Sergeant
Mike Pitts met with a confidential informant at a church on Highway 64 to arrange a
controlled buy from the defendant. She said that “Sergeant Pitts spoke with the informant,
provided recording equipment, talked to them about the buy or what would occur.”
Investigator McDonald searched the informant and the informant’s vehicle “just looking
for illegal narcotics or anything that might be concerning in the vehicle, and nothing was
located.” The controlled buy was to occur “at a residence or a trailer, kind of behind the
community center and church there in McBurg.” Investigator McDonald was “to run
surveillance for the buy,” so when she left the church, she “stayed on Highway 64, very
near the residence. Out of visual of the residence but definitely in the area if needed.”
After the controlled buy was complete, Investigator McDonald followed the informant’s
vehicle back to the church, where she searched the informant and the informant’s vehicle
again, finding nothing.
During cross-examination, Investigator McDonald acknowledged that she
could not see the community center or the residence where the controlled buy took place
from her position on Highway 64. She said that she did not use any vehicle or body camera
that day and noted that she “was simply backup on this particular situation.”
Sergeant Mike Pitts of the LCSD testified that he was the primary narcotics
investigator in Lincoln County. He said that he routinely uses confidential informants in
his work and acknowledged that some of them are drug users or have criminal records. He
said that he always investigates and verifies information provided by informants and
follows specific procedures for controlled buys, including using recording equipment.
Relative to this case, Sergeant Pitts arranged for a confidential informant to
purchase methamphetamine from the defendant on July 10, 2020. He met with the
informant in a church parking lot on Highway 64, had the informant and the informant’s
vehicle searched, issued the informant $250 cash, and equipped the informant with an
“audio/video recording device.” Sergeant Pitts listened in on a recorded conversation
between the informant and the defendant and recognized the defendant’s voice because he
had “heard her voice previously.” During that conversation, the informant arranged to buy
2.5 grams of methamphetamine from the defendant at her residence on 93 McBurg Road.
Sergeant Pitts estimated that the residence was 15 miles away and described it as being
next to and sharing a driveway with a different church.
Sergeant Pitts proceeded to the defendant’s residence in an undercover
“hooptie” vehicle, with the informant following in their own vehicle, and Investigator
McDonald following the informant. Two other officers were also “in the area providing
assistance.” Sergeant Pitts parked his vehicle in the parking lot of the church next door to
the defendant’s residence and watched the informant park, “walk[] up to the front door of
the residence, knock[] on the door,” and be “led into the residence by [the defendant].”
Outside the residence, he saw “a vehicle I know [the defendant] to be operating” parked in
the driveway. He saw no indication that anyone else was at the residence. Sergeant Pitts
listened to the informant’s interaction with the defendant as it was happening, but he could
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not see what occurred in the residence because the informant had placed the recording
device in their pocket. He explained that informants sometimes need to hide the recording
device to prevent it from being discovered.
After the controlled buy was complete, Sergeant Pitts, the informant, and
Investigator McDonald returned to the church parking lot where they initially met. The
informant handed Sergeant Pitts a bag of what appeared to the sergeant to be
methamphetamine. Sergeant Pitts said that a search of the informant and the informant’s
vehicle revealed that the informant no longer had the $250 cash. Sergeant Pitts estimated
that the McBurg Community Center, where children “play[] on the playground” and take
classes, was “[a]round 550 feet” from the defendant’s residence.
During cross-examination, Sergeant Pitts explained that, although the radios
“were spotty,” he provided the informant with a cell phone that recorded the entire
encounter. He said that if he were to lose his live connection to the informant’s recording,
he could dial a telephone number that would automatically reconnect him to the audio and
video feed. He acknowledged that because the audio and video feed ran on “a cellular data
plan,” he “did not have enough reception to watch the actual video in realtime, but I was
able to listen to the audio” of the entire encounter. He said that he lost the audio feed while
driving to the defendant’s residence but was able to reconnect.
On redirect examination, Sergeant Pitts said that $250 for two-and-a-half
grams of methamphetamine was the amount agreed upon by the informant and the
defendant.
Benjamin McCurry, the director of the 9-1-1 Center for Lincoln County,
testified that a map produced “from our system” showed an approximate distance of 575
feet between the defendant’s residence and the McBurg Community Center.
LCSD Investigator Doug Bolenger testified that he provided security during
the controlled buy and “[b]asically stayed in the car in the general area of where things
were going down” “in case something were to happen.” He said that he primarily “stayed
running basically a perimeter route on Highway 64 West Pulaski Highway in and around
the general area.” Investigator Bolenger also served as the evidence custodian and testified
that the methamphetamine recovered from the informant was securely collected and held
according to department policy.
During cross-examination, Investigator Bolenger said that he was in a vehicle
with Investigator Charles Berry during the controlled buy. He acknowledged that they
could not hear the live audio recording from the informant but said that they were “just
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there in case [another officer] got on the radio . . . [and] hollered to us that they needed
assistance or anything like that.”
Tennessee Bureau of Investigation Special Agent Lela Jackson testified as
an expert in forensic chemistry. She tested the crystal substance recovered from the
confidential informant in this case and determined it to be 2.32 grams of a substance
containing methamphetamine.
Ronald Mitchell testified that he was the president of the board of the
McBurg Community Center, a non-profit organization. He said that the community center
was used “for different events, birthday parties, kids[’] birthday parties, wedding
receptions, showers, family reunions.” The center also had a playground, a walking track,
and “some workout equipment.” He said that the center housed “a lot of community
activity and things like that.” During cross-examination, Mr. Mitchell testified that the
McBurg Community Center was owned by a board and not by the city or county
government.
The State rested. After a Momon colloquy, the defendant elected not to
testify and did not put on additional proof.
On this evidence, the jury convicted the defendant of the lesser included
offenses of selling .5 grams or more of methamphetamine and delivering .5 grams or more
of methamphetamine, declining to find that the offenses occurred in a drug-free zone.
At the November 2022 sentencing hearing, Jonathan Williams from the
Tennessee Department of Correction Board of Probation and Parole testified that he
prepared the defendant’s presentence report, which was exhibited to his testimony. The
defendant’s prior criminal history is provided below.
Conviction Conviction Class Offense Date
Failure to appear Class A misdemeanor October 17, 2019
Failure to appear Class A misdemeanor August 26, 2019
Shoplifting Class A misdemeanor August 11, 2019
Shoplifting Class A misdemeanor May 31, 2019
Casual Exchange Class A misdemeanor May 31, 2019
Possession of drug paraphernalia Class A misdemeanor May 31, 2019
Distribution of 5 grams or more of Federal felony - trial court October 18, 2007
cocaine base classified as B felony
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Conspiracy to commit aggravated Class D felony February 26, 2006
burglary
Conspiracy to commit aggravated Class C felony February 26, 2006
robbery
Aggravated burglary Class C felony February 26, 2006
Aggravated robbery Class B felony February 26, 2006
Criminal simulation Class E felony May 9, 2005
Criminal simulation Class E felony May 4, 2005
Sergeant Mike Pitts testified that the “market” for methamphetamine is
“overrun,” with “more and more . . . being pumped in to the community and causing prices
to get cheaper and more people are using and being addicted to meth[amphetamine].” He
said that the rise in methamphetamine addiction contributes to a rise in “[t]heft and
burglaries, things of that nature.” He said, “It is becoming a 24 hour a day fight to combat
the people distributing meth[amphetamine].” He also said that the police had “[r]eceived
numerous complaints” about things occurring at the defendant’s residence, and he had
“observed cars going in and out all times of the day and night, traffic consistent with drug
sales . . . . We conducted traffic stops out there [at] different times of the day and night
where we have recovered narcotics, firearms off of people leaving the residence.”
Larry Davis, the defendant’s father, testified that he and the defendant were
close and that the defendant had helped him during his on-going health issues. He said that
the defendant had one child and one grandchild who she was “crazy about.”
The trial court determined that the defendant’s federal felony conviction for
distribution of more than 5 grams of cocaine constituted a Class B felony for the purposes
of sentencing. The court also found that the 24-hour merger rule did not apply to any of
the defendant’s four prior convictions from February 26, 2006. Based on the defendant’s
criminal history, the trial court classified her as a Range III, persistent offender. In
determining the length of sentence, the court applied enhancement factors 1, 8, and 13 and
applied no mitigating factors. The trial court merged the defendant’s convictions and
sentenced her as a Range III offender to 25 years’ incarceration to be served consecutively
to any prior unexpired sentences.1
1
The trial court sentenced the defendant only for the conviction of selling .5 grams or more of
methamphetamine. The judgment for the convction of delivering .5 grams or more of methamphetamine
notes only that the conviction “merges with Count 1.” We note that our supreme court has advised that
“[w]hen the jury returns guilty verdicts on multiple offenses that eventually will be merged, the best practice
is for the trial court to impose a sentence on each count and reflect the sentence on the respective uniform
judgment document.” State v. Berry, 503 S.W.3d 360, 365 (Tenn. 2015).
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Following a timely but unsuccessful motion for new trial, the defendant filed
a timely notice of appeal. In this appeal, the defendant argues that the recording of her
encounter with the informant was not properly authenticated, that the admission of the
recording without the informant’s testimony violated her right to confrontation, that the
evidence was insufficient to support the conviction, and that the trial court erred by
sentencing her as a Range III offender.
I. Admission of Recording
The defendant argues that the trial court erred by admitting into evidence a
recording of her interaction with the confidential informant because the State failed to
properly authenticate the recording and because its admission violated her right to
confront witnesses against her.
A. Authentication
The defendant contends that the State failed to properly authenticate the
recording of the informant’s interaction with the defendant because Sergeant Pitts did not
see the interaction as it was being recorded. The State argues that the trial court did not
abuse its discretion in admitting the recording.
Tennessee Rule of Evidence 901 provides that “[t]he requirement of
authentication or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to the court to support a finding by the trier of fact that the matter in
question is what its proponent claims.” Tenn. R. Evid. 901(a). One method of
authentication is testimony by a witness with knowledge “that a matter is what it is claimed
to be.” Tenn. R. Evid. 901(b)(1). Both Rule 901 and the common law designate the trial
court as the “arbiter of authentication issues,” and, accordingly, that court’s ruling will not
be disturbed absent a showing that the court clearly abused its discretion. See Tenn. R.
Evid. 901, Advisory Comm’n Comments; State v. Mickens, 123 S.W.3d 355, 376 (Tenn.
Crim. App. 2003). An abuse of discretion occurs when the trial court applies an incorrect
legal standard or reaches a conclusion that is “illogical or unreasonable and causes an
injustice to the party complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006),
overruled on other grounds by State v. Patterson, 564 S.W.3d 423, 433 (Tenn. 2018); see
State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).
In our view, the trial court did not abuse its discretion in finding that the
video was properly authenticated. Sergeant Pitts testified that he provided the informant
with the recording device, watched the informant enter the defendant’s residence, heard
the interaction that occurred inside the residence via the recording device, watched the
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informant leave the defendant’s residence, followed the informant back to the
predetermined meeting place, and collected the recording device from the informant.
Sergeant Pitts also testified that he recognized the defendant’s voice on the recording.
This testimony is sufficient to support the trial court’s finding that the recording was what
it was purported to be—the recording of the controlled buy collected from the informant
by Sergeant Pitts. This is all that Rule 901 requires. The trial court did not err.
B. Confrontation Clause
Relatedly, the defendant argues that because the informant did not testify at
trial, the trial court’s admission of the recording violated the Confrontation Clause. The
State contends that the defendant waived this issue and is not entitled to plain error relief.
The State is correct that the defendant failed to raise the issue of
confrontation in her motion for new trial, and accordingly, she has waived our plenary
review of the issue. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue
presented for review shall be predicated upon error in the admission or exclusion of
evidence . . . 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 issues will be treated as
waived.”).
Whether properly assigned or not, however, this court may, “[w]hen
necessary to do substantial justice, . . . consider an error that has affected the substantial
rights of a party at any time, even though the error was not raised in the motion for a new
trial.” Tenn. R. App. P. 36(b). This court will grant relief for plain error only when:
(1) the record clearly establishes what occurred in the trial
court; (2) the error breached a clear and unequivocal rule of
law; (3) the error adversely affected a substantial right of the
complaining party; (4) the error was not waived for tactical
purposes; and (5) substantial justice is at stake; that is, the error
was so significant that it “probably changed the outcome of the
trial.”
State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d
274, 282-83 (Tenn. 2000)). The party claiming plain error bears the burden of satisfying
all five criteria as a prerequisite to plain error review. See id. Because each factor must
be established, we need not consider all five factors when a single factor indicates that
relief is not warranted. State v. Fayne, 451 S.W.3d 362, 372 (Tenn. 2014) (citing State v.
Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). “[A]n error would have to [be] especially
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egregious in nature, striking at the very heart of the fairness of the judicial proceeding, to
rise to the level of plain error.” Fayne, 451 S.W.3d at 372 (citation omitted) (alterations
in Fayne).
We cannot say that the trial court breached a clear and unequivocal rule of
law by admitting the recording without the defendant’s having an opportunity to cross-
examine the informant. The Sixth Amendment to the federal constitution and article I,
section 9 of the Tennessee Constitution afford the criminal accused the right to confront
the witnesses against her. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Although
the provisions are not coterminous, our supreme court has “expressly adopted and applied
the same analysis used to evaluate claims based on the Confrontation Clause of the Sixth
Amendment.” State v. Dotson, 450 S.W.3d 1, 62 (Tenn. 2014) (citing State v. Parker,
350 S.W.3d 883, 898 (Tenn. 2011); State v. Franklin, 308 S.W.3d 799, 809-10 (Tenn.
2010); State v. Cannon, 254 S.W.3d 287, 301 (Tenn. 2008); State v. Lewis, 235 S.W.3d
136, 145 (Tenn. 2007)).
In Crawford v. Washington, the United States Supreme Court departed from
decades-long precedent and held for the first time that “[w]here testimonial evidence is at
issue . . . the Sixth Amendment demands . . . unavailability and a prior opportunity for
cross-examination.” Crawford v. Washington, 541 U.S. 36, 68 (2004). “Where
nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to
afford the States flexibility in their development of hearsay law.” Id. Importantly, the
Confrontation Clause does not bar statements that are not hearsay. State v. George
Anthony Bell, No. M2008-01187-CCA-R3-CD, 2009 WL 3925370, at *4 (Tenn. Crim.
App., Nashville, Nov. 19, 2009) (citations omitted); State v. Bobby Lewis Smith, No.
M2010-02077-CCA-R3-CD, 2012 WL 3776679 at *2 (Tenn. Crim. App., Nashville, Aug.
31, 2012) (citations omitted). “‘Hearsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” Tenn. R. Evid. 801(c). An out-of-court statement that is not offered
to prove the truth of the matter asserted is not hearsay and is not subject to the
Confrontation Clause. Crawford, 541 U.S. at 59 n. 9.
Accordingly, the admissibility of statements by non-testifying informants
under the Confrontation Clause depends on context. George Anthony Bell, 2009 WL
3925370, at *5. This court has previously explained,
Given that an informant’s general intent is to aid law
enforcement, the statements an informant makes in the course
of his or her interaction with law enforcement could be said to
be made with the intent of aiding later criminal prosecution,
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which is a characteristic of the testimonial statements the
Confrontation Clause bars. However, because an informant
can aid police either by directly providing police with
information or by allowing police to monitor his or her illicit
interaction with a target, an informant’s statement may not
actually take the form of hearsay and, therefore, its admission
may not violate the Confrontation Clause, though it may be
made with the purpose of aiding future prosecution.
Id. Consequently, courts have generally held that out-of-court statements made by a non-
testifying informant directly to the police violate the Confrontation Clause, but “informant
statements made during a recorded conversation between the informant and a non-law
enforcement party do not violate the Confrontation Clause.” Id. at *5-6 (citing State v.
Johnson, 771 N.W.2d 360, 369-70 (S.D. 2009)).
Here, as the trial court determined, the informant’s statements on the
recording were not introduced to prove the truth of the assertions made. Consequently,
the informant’s statements do not constitute hearsay and the Confrontation Clause is not
implicated.
III. Sufficiency
Next, the defendant argues that the evidence adduced at trial was insufficient
to sustain her convictions. The State argues that the evidence is sufficient.
Sufficient evidence exists to support a conviction if, after considering the
evidence—both direct and circumstantial—in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979);
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh the
evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes, 331
S.W.3d at 379. The verdict of the jury resolves any questions concerning the credibility of
the witnesses, the weight and value of the evidence, and the factual issues raised by the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court
must afford the State the strongest legitimate view of the evidence contained in the record
as well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.
As relevant to this case, “[i]t is an offense for a defendant to knowingly . . .
[d]eliver a controlled substance . . . [or s]ell a controlled substance.” T.C.A. § 39-17-
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417(a)(2)-(3). Methamphetamine is a Schedule II controlled substance. Id. § 39-17-
408(d)(2). A violation of Code section 39-17-417(a)(2) or (3) is a Class B felony when the
controlled substance involved is .5 grams or more “of any substance containing . . .
methamphetamine.” Id. § 39-17-417(c).
The evidence, taken in the light most favorable to the State, established that
a confidential informant arranged to meet the defendant at her residence to purchase 2.5
grams of methamphetamine for $250. The informant was searched, and after officers
determined that the informant did not possess any drugs, was provided $250 cash. The
informant drove to the defendant’s residence, purchased 2.32 grams of methamphetamine
from the defendant, and returned to a predetermined meeting place, where officers ensured
that the informant possessed no cash or drugs other than the methamphetamine. Sergeant
Pitts led and Investigator McDonald followed the informant’s vehicle, and Sergeant Pitts
watched the defendant welcome the informant into her residence and listened to the
informant and the defendant’s transaction as it was happening. Sergeant Pitts recognized
the defendant’s voice on the audio feed from his prior encounters with her. In our view,
this evidence sufficiently supports the defendant’s convictions of selling and delivering .5
grams or more of methamphetamine.
IV. Sentencing
Finally, the defendant argues that the trial court erred by classifying her as a
Range III offender, arguing that some of her prior convictions should have been considered
a single conviction for the purposes of offender classification. The State argues that the
trial court did not err.
Our supreme court has adopted an abuse of discretion standard of review for
sentencing and has prescribed “a presumption of reasonableness to within-range sentencing
decisions that reflect a proper application of the purposes and principles of our Sentencing
Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of the purposes
and principles of sentencing involves a consideration of “[t]he potential or lack of potential
for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial courts are
“required under the 2005 amendments to ‘place on the record, either orally or in writing,
what enhancement or mitigating factors were considered, if any, as well as the reasons for
the sentence, in order to ensure fair and consistent sentencing.’” Bise 380 S.W.3d at 698-
99 (quoting T.C.A. § 40-35-210(e)). The abuse-of-discretion standard of review and the
presumption of reasonableness also applies to a trial court’s determination of the
defendant’s range classification. See State v. Laylon Ward, Jr., No. W2017-00736-CCA-
R3-CD, 2018 WL 1091792, at *2 (Tenn. Crim. App., Jackson, Feb. 23, 2018) (citing State
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v. Joseph Cordell Brewer, III, No. W2014-01347-CCA-R3-CD, 2015 WL 4060103, *7-8
(Tenn. Crim. App., Jackson, June 1, 2015)) (applying an abuse of discretion standard to
the trial court’s determination of the range classification).
As relevant here, a Range III, persistent offender “is a defendant who has
received . . . [a]ny combination of five (5) or more prior felony convictions within the
conviction class or higher or within the next two (2) lower felony classes, . . . or . . . [a]t
least two (2) Class A or any combination of three (3) Class A or Class B felony convictions
if the defendant’s conviction offense is a Class A or B felony.” T.C.A. § 40-35-107(a)(1)-
(2). Additionally,
In determining the number of prior felony convictions a
defendant has received[,] . . . [e]xcept for convictions for which
the statutory elements include serious bodily injury, bodily
injury, threatened serious bodily injury or threatened bodily
injury to the victim or victims, or convictions for the offense
of aggravated burglary under § 39-14-403, convictions for
multiple felonies committed within the same twenty-four-hour
period constitute one (1) conviction for the purpose of
determining prior convictions[.]
Id. § 40-35-107(b)(4). This is commonly known as the 24-hour merger rule.
The prior convictions at issue here are the defendant’s convictions of
conspiracy to commit aggravated burglary, conspiracy to commit aggravated robbery,
aggravated burglary, and aggravated robbery for offenses committed on February 26, 2006.
Under the plain language of the statute, the defendant’s aggravated burglary conviction is
excluded from merging with the other convictions despite having been committed within
the same 24-hour period. Id. As to the defendant’s aggravated robbery conviction, this
court has previously determined that for the purpose of the 24-hour merger rule, “the
statutory elements of robbery include a threat of bodily injury.” State v. Jamie Lynn
Middlebrook, No. M2009-02276-CCA-R3-CD, 2011 WL 198689, at *7 (Tenn. Crim.
App., Nashville, Jan. 11, 2011) (citing State v. Iwanda Anita Buchanan, No. M2007-
02870-CCA-R3-CD, 2008 WL 4467185, at *5 (Tenn. Crim. App., Nashville, Oct. 6,
2008)); see also T.C.A. § 39-13-402(a) (“Aggravated robbery is robbery as defined in
[section] 39-13-401 . . . [a]ccomplished with a deadly weapon or by display of any article
used or fashioned to lead the victim to reasonably believe it to be a deadly weapon; or . . .
[w]here the victim suffers serious bodily injury.”); id. § 39-13-401(a) (“Robbery is the
intentional or knowing theft of property from the person of another by violence or putting
the person in fear.”) Consequently, the defendant’s conviction for aggravated robbery is
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also excluded from the 24-hour merger rule.
The only remaining question is whether conspiracy to commit an offense is
excluded from the 24-hour merger rule if the offense that is the object of the conspiracy is
excluded. The State points to State v. Lewis, No. M2005-02279-CCA-R3-CD, 2006 WL
2738160, at *8 (Tenn. Crim. App., Nashville, Sept. 26, 2006), to argue that “[t]he 24-hour
merger rule overlooks distinctions between an inchoate offense and the completed
offense”; however, at the time the Lewis case was decided the 24-hour merger rule looked
to whether the prior convictions resulted in bodily injury to the victim and not to whether
the “statutory elements include serious bodily injury, bodily injury, threatened serious
bodily injury or threatened bodily injury to the victim or victims.” Id. § 40-35-107(b)(4)
(emphasis added). The defendant points to State v. Miler—a case we cannot find based on
the name and citation provided by the defendant—a case that also turned on whether the
prior convictions resulted in bodily injury or threatened bodily injury to the victim. These
cases are not applicable to our analysis of whether a conspiracy conviction contains a
statutory element of “serious bodily injury, bodily injury, threatened serious bodily injury
or threatened bodily injury to the victim or victims” as stated by the current 24-hour merger
rule as provided in Code section 40-35-107(b)(4).
This court has previously concluded that a conviction of attempted
aggravated robbery is excluded from the 24-hour merger rule because it “necessarily
contains an element of bodily injury or threatened bodily injury” in that a conviction
requires the State to prove that the defendant “had the culpability required to commit either
bodily harm or threatened bodily harm” as provided in the aggravated robbery statute.
State v. Todd Samuel Adcock, No M2018-01623-CCA-R3-CD, 2019 WL 5455364, at *4
(Tenn. Crim. App., Nashville, Oct. 24, 2019). Similarly, this court has concluded that a
conviction for facilitation of aggravated robbery is excluded from the 24-hour merger rule
because it requires the State to “‘prove the commission of a specified felony’ in order to
establish the facilitation of a felony.” State v. Willie Lee Hughes, Jr., No. M2015-01207-
CCA-R3-CD, 2016 WL 6956804, at *4 (Tenn. Crim. App., Nashville, Nov. 29, 2016)
(citation omitted).
Relevant to criminal conspiracy, our code provides that
[t]he offense of conspiracy is committed if two (2) or more
people, each having the culpable mental state required for the
offense that is the object of the conspiracy, and each acting for
the purpose of promoting or facilitating commission of an
offense, agree that one (1) or more of them will engage in
conduct that constitutes the offense.
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T.C.A. § 39-12-103(a). In our view, conspiracy to commit aggravated robbery includes a
statutory element of threat of bodily injury. The State was required to prove that the
defendant “act[ed] for the purpose of promoting or facilitating” theft of property from the
person of another “with a deadly weapon or . . . [w]here the victim suffers serious bodily
injury.” See id. §§ 39-12-103(a), 39-13-402(a), -401(a). This required proof of, at
minimum, a threat of bodily injury to the victim. Consequently, conspiracy to commit
aggravated robbery is excluded from the 24-hour merger rule.
We need not decide whether conspiracy to commit aggravated burglary is
excluded from the rule because there are no other convictions within that 24-hour period
with which it could merge. The trial court did not err by counting each conviction
separately and sentencing the defendant as a Range III offender.
Accordingly, the judgment of the trial court is affirmed.
__________________________________
JAMES CURWOOD WITT, JR., JUDGE
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