IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED MAY 1998 SESSION March 16, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9706-CR-00198 ) ) Hamilton County v. ) ) Honorable Stephen M. Bevil, Judge ) NATHAN LEE COLQUIT, ) Aggravated burglary, aggravated robbery ) Appellant. )
For the Appellant: For the Appellee:
Ardena J. Garth John Knox Walkup District Public Defender Attorney General of Tennessee and and Karla G. Gothard Elizabeth B. Marney Assistant Public Defender Assistant Attorney General of Tennessee 701 Cherry St., Suite 300 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243-0493 (AT TRIAL) William H. Cox, III Ardena J. Garth District Attorney General District Public Defender and and Bates Bryan, Jr. Donna Robinson Miller Rebecca J. Stern Assistant Public Defender Assistant District Attorneys General 701 Cherry St., Suite 300 County-City Building, Third Floor Chattanooga, TN 37402 600 Market Street (ON APPEAL) Chattanooga, TN 37402
OPINION FILED:____________________
CONVICTIONS AFFIRMED; AGGRAVATED BURGLARY SENTENCE MODIFIED
Joseph M. Tipton Judge OPINION
The defendant, Nathan Lee Colquit, appeals as of right from his
convictions by a jury in the Hamilton County Criminal Court of aggravated burglary, a
Class C felony, and aggravated robbery, a Class B felony. For the aggravated burglary
conviction, he was sentenced as a Range III, persistent offender to fifteen years
confinement to be served in the custody of the Department of Correction. For the
aggravated robbery conviction, he was sentenced as a Range II, multiple offender to
fifteen years confinement to be served in the custody of the Department of Correction.
The sentences were ordered to be served concurrently. The defendant presents the
following issues for our review:
(1) whether the trial court erred by denying his motion to suppress the fruits of two warrantless searches and seizures of the car he was driving when arrested;
(2) whether the trial court erred by failing to suppress the victim’s identification of him from a photograph array;
(3) whether the trial court erred by failing to instruct the jury on the lesser included offenses of assault and aggravated assault; and
(4) whether the trial court erred in sentencing for the aggravated burglary conviction.
We affirm the convictions upon the jury verdicts but modify the sentence for aggravated
burglary to reflect a sentence as a Range II, multiple offender to ten years confinement.
The evidence at trial established that on November 8, 1993, Kathryn
Walker returned to her home to find that it had been ransacked. When Ms. Walker
screamed, the defendant ran down the hall, wielding a gun, and ordered her to stop
screaming or he would kill her. The defendant pushed Ms. Walker to the floor, covered
her with a bedspread and fled. Ms. Walker described the assailant to Lieutenant John
Bradford of the Chattanooga Police Department, and she provided Bradford with a list
of items that were stolen, which included a mink coat, jewelry, credit cards and cash.
2 Ms. Walker later identified the defendant as the assailant from a photograph array, and
she testified at trial that the defendant was the assailant.
At the suppression hearing, Bradford testified that he received a
telephone call on November 11, 1993, from Captain Bobby Persinger of the Catoosa
County Sheriff’s Department in Georgia. Bradford said Persinger told him that on
November 9, 1993, Persinger was involved in a car chase with the defendant and that
in the car, Persinger found a mink coat bearing the embroidered name “Kathy Walker”
inside of it. Bradford said he met with Persinger that day and photographed the coat,
then he and Persinger went to the impound lot where the car was located. He said that
when he looked in the car, he saw a camera, jewelry and other items, which he
photographed.
Bradford testified that he met with the defendant, who was being held in
Georgia on charges of evading arrest, reckless driving and possession of crack
cocaine. He said that when he advised the defendant of his rights, the defendant
refused to sign a waiver but agreed to talk. Bradford said the defendant told him that
on November 8, 1993, he was staying with a friend at a motel, he took the friend to
work in the morning, then he went back to the room and slept. The defendant told him
that the car belonged to a female named Jan who loaned him the car in exchange for
crack cocaine. The defendant told him that he knew nothing of the mink coat until he
was arrested and that he knew nothing about the burglary.
Bradford testified that he took a photograph of the defendant. He stated
that he constructed a photograph array but that he did not include the photograph of the
defendant that he took on November 11. He said that instead, he included a
photograph of the defendant from 1991. He said he asked the victim to look at the
photograph array and to determine if she recognized the assailant. He testified that the
3 victim identified the defendant and that she felt fear when looking at his photograph.
He admitted that before the victim looked at the array, he told her that a suspect had
been arrested, but he said that he did not suggest to the victim which man in the array
was the suspect. He said the victim also identified photographs of the mink coat and
jewelry, and he then returned to Georgia and took possession of the victim’s property.
On cross-examination, Bradford testified that the victim described the
assailant as a slender black male, twenty-five to thirty years old, six feet tall, one
hundred and eighty pounds and wearing a red bandana over his hair. He said the
victim did not describe the defendant as having facial hair nor did she describe the
defendant’s teeth, voice, clothing, or distinguishing facial characteristics. He said that in
arranging the photograph array, he tried to choose people who looked similar to the
defendant, keeping in mind the victim’s description. He said that he chose men with
facial hair for the array because the defendant had facial hair in the photograph he
used, and he did not want the defendant to look different from the other men. He said
he used the 1991 photograph of the defendant instead of the more recent one because
the older photograph had a background similar to the photographs of the other men in
the array. He said the recent photograph had a yellow brick background.
Bradford said that when he met with Persinger on November 11,
Persinger brought the mink coat and a maroon pouch containing jewelry. He admitted
that he did not have a search warrant when he met with Persinger or when he and
Persinger went to the impound lot. He said that when they went to the impound lot, he
looked in the car before he opened the door and saw a camera on the passenger’s
side. He said he removed the camera from the car and found some jewelry in the
trunk. He said he took the items to Chattanooga after photographing them, and he
showed the items to the victim that night and released them to her when she identified
them.
4 Captain Bobby Persinger of the Catoosa County Sheriff’s Department
testified that on November 11, 1993, he received a report from Officer Kelly Holcombe
that Holcombe had tried to pull over a car but that the car did not stop and a chase was
underway. Persinger testified that about that time, he saw the cars pass by him, and he
followed behind Holcombe who was behind the defendant. He said the defendant was
driving a gray, 1986 Buick Skyhawk and was traveling around fifty miles per hour in a
forty mile per hour zone. He said that as the chase continued, the speeds escalated to
between fifty and sixty miles per hour. He said the defendant passed traffic on the left
side of the road, several times when cars were approaching in the opposite direction.
He said the defendant struck another car at an intersection but continued driving. He
said eventually the defendant pushed his brakes, causing his car to spin backwards and
slide off the road before it hit a curb and stopped.
Persinger testified that the passenger, Wilbur “Shaky” Wilkes, got out of
the car and was handcuffed. He said that although officers were yelling, the defendant
would not get out, and his door was locked and could not be opened. He said the
defendant was leaning over and had his hands down toward one of his legs. He said
an officer broke the car window, apprehended and handcuffed the defendant. He said
the car registration was checked and revealed that the car belonged to a woman from
the area. He said he tried to verify the owner of the car but never made contact with
anyone.
Persinger testified that a wrecker was called to tow the car because it was
not fit to drive. He said that a tire and rim were gone and a window was busted. He
testified that officers normally inventory a car before it is towed, and an officer
inventoried the car in the present case. Persinger said he looked in the back seat of
the car and saw a mink coat. He said the coat caught his attention because it did not
match the car, and he took it out and noticed a name inside the coat.
5 Captain Persinger testified that soon after, he saw a newspaper article
that mentioned that a mink coat had been stolen in a burglary in Chattanooga. He said
he called Lieutenant Bradford in Chattanooga and asked him if the stolen coat was
reported to have a name inside of it. Persinger told Bradford that he thought he had the
coat. He said that the coat remained in the car after it was inventoried and towed and
that he went to the impound lot and retrieved the coat after speaking with Bradford. He
said he met with Bradford, and Bradford identified the coat. He said Bradford brought a
list of property stolen from the victim, and they went to the impound lot and found a
camera and jewelry in the car.
On cross-examination, Persinger testified that Officer Holcombe originally
tried to stop the defendant for making an improper turn. He said the pursuit began in
Catoosa County, Georgia, and ended in Walker County where the inventory was
performed. He said his office’s policy is that if a suspect flees from an officer, the
suspect’s car is towed. He said this is not a written policy. He said the inventory policy
is that if a car is towed, it is inventoried. He identified his office’s written standard
operating procedures regarding vehicle inventory and impoundment and pointed to a
policy that states that if there is no one present who is authorized and capable of
removing a vehicle, it should be towed. He said he did not remember asking the
defendant if he wanted the car towed or disposed of in another way. He said the car
was not driveable because of the tire, and he could not find anyone to pick up the car
because he could not make contact with the owner. He admitted that he thought the
mink coat did not fit with the two men in the car and that he did not see the name
embroidered in the coat until he removed it from the car. He said that when he and
Bradford went to the impound lot, it was not to conduct an inventory but to retrieve
property determined to be stolen.
6 Officer Terrence Kelly Holcombe of the Catoosa County Sheriff’s
Department testified that he saw the defendant make an improper turn. He said he
pulled behind the defendant and turned on his blue lights, but the defendant would not
stop. He said the defendant accelerated to forty or forty-five miles per hour on a curvy
road and continued to accelerate to around seventy miles per hour once out of the
curvy road. He said that Persinger eventually pulled behind him. He said that the
defendant struck a Bronco, went into a ditch and came out with a flat tire but that the
defendant continued to drive. He said the defendant stopped four to five miles later
when he spun out of control and ran off the road.
Holcombe testified that the driver’s side door was locked, and the
defendant was bent down in the floorboard. He said the officers on the scene thought
the defendant might have a gun, and they broke the driver’s side window. Holcombe
said the glove box was open, and there was a lot of jewelry in the glove box and on the
floorboard. He said a wrecker was called, and he prepared an inventory list before the
car was towed. He said he marked the “clothes” box on the inventory sheet to indicate
the mink coat. He testified that he had checked the license plate number during the
chase and that the car was registered to a woman. He said he did not know if anyone
was able to contact the owner. He said that after the inventory was complete, the car
was towed. He said that most of the items remained in the car but that some jewelry
was taken out for evidence and was noted on the inventory sheet.
On cross-examination, Holcombe testified that cars are inventoried every
time there is an arrest and a vehicle is involved. He said that the inventories are
performed to protect the officers and the owners of the property. He said he later
learned that a woman had been contacted, and she had said that the defendant and
Shaky had permission to borrow the car. He said the coat was in the back seat when
he performed the inventory.
7 The trial court denied the motion to suppress, finding that the jewelry had
fallen out of the glove compartment and was in plain view, as was the mink coat. It
found that the totality of the circumstances would cause any reasonable person
suspicion and that there were “enough articulable and specific facts . . . that these items
could very well be the fruits of a crime . . . .” It further found that the searches and
seizures were proper because they were pursuant to an inventory.
I. SEARCH AND SEIZURE
The defendant contends that the trial court erred by denying his motion to
suppress the evidence obtained from the warrantless searches and seizures that
occurred on November 9 and 11. He argues that the items did not fall within the plain
view exception to the warrant requirement because their incriminating nature was not
apparent. He further argues that the impoundment and subsequent inventory were
improper because no other methods of removing the vehicle were offered to him and
because the state failed to show that the impoundment was necessary.
The state initially argues that the defendant waived the issue of the
improper impoundment by failing to raise it in the motion to suppress or in the motion
for a new trial. It argues that, in any event, the impoundment was necessary because
the car was not driveable, and there was no other alternative. The state further argues
that the evidence was in plain view, and its incriminating nature was apparent. In the
alternative, it argues that the discovery of the mink coat and jewelry was the result of a
look, not a search. With respect to the second search of the car at the impound lot, the
state argues that when impoundment is necessary, any subsequent search of the
impounded vehicle is legal.
A trial court’s findings of fact on a motion to suppress are conclusive on
appeal. This court will not reverse a trial court’s findings unless the evidence
8 preponderates against those findings. State v. Killebrew, 760 S.W.2d 228, 233 (Tenn.
Crim. App. 1988).
A. NOVEMBER 9 SEARCH AND SEIZURE
First, the defendant argues that the initial warrantless search of the car he
was driving on November 9 when he was arrested and the seizure of the mink coat that
occurred when Persinger removed the coat from the car violated the Fourth
Amendment’s prohibition against unreasonable searches and seizures. He argues that
the search was not justified as an inventory search because the police had no right to
impound the vehicle. We conclude that the November 9 search and seizure were valid
as both a seizure pursuant to an inventory search and a search incident to a lawful
arrest.
Initially, we note that the state contends that the defendant did not raise
the issue of impoundment in his motion to suppress or his motion for a new trial. We
believe that the issue of the legality of the search, which was raised in both motions, is
inherently dependent upon the validity of the impoundment. Thus, the issue is properly
before this court.
The Fourth Amendment to the United States Constitution provides that
citizens have a right to be “secure in their persons, houses, papers and effects, against
unreasonable searches and seizures . . . .” Consequently, due process requires that
evidence obtained in violation of the Fourth Amendment be inadmissible. See Mapp v.
Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961). Generally, warrantless searches
are unreasonable per se and are subject to only a few exceptions. See Katz v. United
States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967).
9 One such exception to the warrant requirement is the “routine inventory
search of an automobile lawfully impounded.” South Dakota v. Opperman, 428 U.S.
364, 365, 96 S. Ct. 3092, 3095 (1976). The inventory search pursuant to a lawful
impoundment is justified by the need to protect the owner’s property while in police
custody, the need to protect police against claims of lost property, and the need to
protect police from potential danger. Opperman, 428 U.S. at 369, 96 S. Ct. at 3097.
Our supreme court has delineated guidelines for determining whether an impoundment
is lawful, and thus, a subsequent inventory search valid. Drinkard v. State, 584 S.W.2d
650, 653 (Tenn. 1979). In Drinkard, the court stated that:
[I]f the circumstances that bring the automobile to the attention of the police in the first place are such that the driver, even though arrested, is able to make his or her own arrangements for the custody of the vehicle, or if the vehicle can be parked and locked without obstructing traffic or endangering the public, the police should permit the action to be taken rather than impound the car against the will of the driver and then search it. Just cause to arrest the driver is not, alone, enough; there must be reasonable cause to take his vehicle into custody.
Id. The burden of proving the propriety of the impoundment and subsequent search
rests with the party seeking to introduce the fruits of the search. Id. (citation omitted).
The defendant maintains that the impoundment and subsequent inventory
search of his car were unlawful. He relies on State v. Lunsford, 655 S.W.2d 921, 924
(Tenn. 1983). In that case, a police officer stopped the defendant’s car and arrested
the defendant on the suspicion of burglary. The officer asked the defendant if he would
consent to the search of his trunk, and the defendant asked the officer if he had a
search warrant. The officer said that he did not, and no further conversation ensued.
The officer impounded the defendant’s car and during an inventory search, the officer
found stolen property. Our supreme court held that the impoundment and subsequent
search of the defendant’s car were unlawful and quoted with approval from a Florida
Supreme Court opinion holding that an officer should “‘advise a present, silent arrestee
that his car will be impounded unless he can provide a reasonable alternative to
10 impoundment.’” Lunsford, 655 S.W.2d at 924 (quoting Sanders v. State, 402 So.2d
973, 974 (Fla. 1981)). The defendant in the present case contends that the officers did
not consult with him about alternatives to impoundment. However, in Lunsford, the
court also quoted with approval from Sanders that “‘the extent of the consultation with
the arrestee is a factor for the trial court to consider in determining whether the
impoundment was reasonable and necessary.’” Lunsford, 655 S.W.2d at 924 (quoting
Sanders, 402 So.2d at 974).
We hold that despite the officer’s failure to ask the defendant if he had an
alternative to towing the car, the impoundment and subsequent inventory search were
reasonable and necessary. First, there was no one present at the scene to take control
of the car. The defendant had been arrested and Shaky Wilkes was handcuffed and
had no driver’s license. Although the record indicates that the owner of the car may
have been contacted, she was never at the scene to take control of the car.
Furthermore, the car was not driveable and could not have been left where it came to
rest. One of the tires was inoperable and a window was broken. In light of the
foregoing, we conclude that there was no reasonable alternative to having the car
towed. Thus, the trial court correctly determined that the search was proper as an
inventory search pursuant to the lawful impoundment of the car. See State v. Roberge,
642 S.W.2d 716, 719 (Tenn. 1982) (holding that towing and inventory of car were
proper where occupants were either too young or too intoxicated to drive and made no
reasonable or plausible suggestions for the disposition of the car).
The state urges that the search and subsequent seizure were valid
because the contents of the car were in plain view. However, in order to fall within the
plain view exception to the warrant requirement, the incriminating nature of the
evidence must be apparent. See Coolidge v. New Hampshire, 403 U.S. 433, 466, 91
S. Ct. 2022, 2038 (1971). Although Officer Holcombe testified that he thought the mink
11 coat did not fit with the two men in the car, the incriminating nature of the mink coat and
the other items in the car was not sufficiently apparent, particularly upon confirmation
that a woman owned the car. It was not until Captain Persinger learned that a mink
coat had been stolen that the incriminating nature of the items in the car became
apparent.
Although not raised by either party, we conclude that the search was valid
as a search incident to a lawful arrest. See United States v. Robinson, 414 U.S. 218,
235, 94 S. Ct. 467, 477 (1973). Having placed the defendant under arrest, Officer
Holcombe was entitled to conduct a search of the entire passenger compartment of the
car. See New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981); State v.
Watkins, 827 S.W.2d 293, 295-96 (Tenn. 1992). In summary, we conclude that the
November 9 search and seizure were valid as both an inventory search following a
lawful impoundment and as a search incident to a lawful arrest.
B. NOVEMBER 11 SEARCH AND SEIZURE
Next, the defendant contends that the November 11 warrantless search
and seizure at the impound lot violated the Fourth Amendment. He relies on the same
arguments made with respect to the November 9 search and seizure. The state
contends that when an impoundment is necessary, any subsequent search of the
This court considered a similar issue in State v. J.R. Sanders, No. 01C01-
9003-CR-00091, Davidson County (Tenn. Crim. App. Nov. 9, 1990). In Sanders, the
defendant was a wholesale cocaine dealer who supplied cocaine to a retailer. The
retailer was arrested with cocaine in the defendant’s truck, and the truck was seized
and taken to police headquarters where an inventory search was conducted. The
officer found documents relating to the defendant’s ownership of the truck and deeds to
12 property owned by the defendant. The officer seized the items relating to the truck’s
ownership but left the deeds in the truck. Fourteen months later and two weeks before
the defendant’s trial for conspiracy to sell and possession of cocaine, an officer
returned to the truck and seized the deeds, which were used as evidence against the
defendant at trial.
This court concluded that the original search was valid as a search
incident to a lawful arrest, but the defendant argued that the second search fourteen
months later was a separate warrantless search that was unreasonable. In upholding
the validity of the second search and seizure, this court concluded that the officer
“merely seized later what he could have seized earlier. No Fourth Amendment violation
is implicated in this conduct.” Sanders, slip op. at 5. For similar reasons, we conclude
that the November 11 search and seizure were valid.
II. PHOTOGRAPH ARRAY
The defendant contends that the trial court erred by failing to suppress the
victim’s identification of him from a photograph array. He argues that the array was
unduly suggestive, thereby making the victim’s identification unreliable. Specifically, he
takes issue with the fact that the photograph of the defendant was two years old, that
Lieutenant Bradford chose photographs of men who looked like the defendant, not men
who matched the victim’s description, and that Bradford told the victim that someone
was arrested for the crime before the victim examined the array. The state contends
that the evidence does not preponderate against the trial court’s finding that the array
was not unduly suggestive. We agree.
When the constitutionality of an out-of-court identification is challenged,
suppression is only required when there is an unnecessarily suggestive procedure, and
the totality of the circumstances shows that the identification was unreliable because of
13 the suggestiveness. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243,
2253 (1977). The Supreme Court has identified the following factors to be considered
when determining whether an identification is reliable and thus admissible:
(1) the opportunity of the witness to view the criminal at the time of the crime,
(2) the witness’ degree of attention,
(3) the accuracy of the witness’ prior description of the criminal,
(4) the level of certainty demonstrated by the witness at the confrontation, and
(5) the length of time between the crime and the confrontation.
Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 381-82 (1972). Furthermore, a
victim’s description need not be perfect to be reliable.
The factors set forth in Neil, as applied to the instant case, support the
admissibility of the victim’s identification. Although the victim had only a relatively short
amount of time to view the defendant, she was able to remember the defendant’s
approximate height, weight and build. Nothing in the photograph of the defendant
submitted as part of the array suggests that the victim’s description was inaccurate.
Furthermore, the victim did not waver in her identification of the defendant, and only a
short period of time, approximately three days, had lapsed between the crime and the
identification.
With respect to the defendant’s complaint that Lieutenant Bradford used a
two-year-old photograph instead of the recent one, Bradford explained that the recent
photograph was noticeably different from the photographs of the other men in the array.
Far from making the identification unreliable, we believe that the officer merely took
steps to ensure that the array was fair. The defendant also argues that Bradford chose
photographs of men who resembled the defendant, not men who matched the victim’s
description. On the contrary, Bradford testified that he chose photographs of men who
14 resembled the defendant, keeping in mind the victim’s description. Again, the record
shows that Bradford used care to ensure that the array was not unduly suggestive, and
a review of the photographs of the other men in the array shows that they matched the
victim’s description. Finally, the defendant argues that the array was suggestive
because Bradford told the victim that he had arrested a suspect before the victim
looked at the array. However, Bradford never suggested to the victim which man in the
array was the suspect. Rather, the victim identified the defendant on her own, and she
did not waver in that identification. Based on these facts, we hold that the identification
was properly admitted.
III. LESSER INCLUDED OFFENSES
The defendant contends that the trial court erred by failing to instruct the
jury on the lesser included offenses of assault and aggravated assault. The state
contends that the issue is waived because the defendant did not request an instruction
on assault or aggravated assault nor did he raise it in his motion for a new trial. See
T.R.A.P. 3(e). It argues that the issue is nevertheless without merit because the record
shows that the defendant is guilty of the greater offenses, and there is no evidence to
support a finding of guilt for assault or aggravated assault.
Pursuant to T.C.A. § 40-18-110(a), a trial court is required “to charge the
jury as to all of the law of each offense included in the indictment, without any request
on the part of the defendant to do so.” When the evidence, introduced by either the
state or the defendant, is susceptible of inferring guilt of a lesser grade or class or a
lesser included offense of the charged offense, the trial court has a mandatory duty to
charge such lesser offense. See T.C.A. § 40-18-110(a); State v. Trusty, 919 S.W.2d
305, 310 (Tenn. 1996); Johnson v. State, 531 S.W.2d 558, 559 (Tenn. 1975); State v.
Howard, 926 S.W.2d 579, 585-86 (Tenn. Crim. App. 1996). However, the instruction is
15 not required if there is no evidence in the record to support a conviction for the lesser
offense. Trusty, 919 S.W.2d at 311.
With respect to the state’s argument that the issue is waived because the
defendant failed to request the instruction on the lesser included offenses, T.C.A. § 40-
18-110(a) instructs otherwise. However, the state correctly argues that the defendant
failed to raise the issue in his motion for a new trial, thus we are barred from review.
See T.R.A.P. 3(e). In any event, the issue is without merit. While we agree that assault
and aggravated assault are lesser included offenses of aggravated robbery, we do not
agree that the evidence in this case warrants an instruction on either offense. The
uncontested evidence shows that the defendant, brandishing a gun, stole items from
the victim’s home. The evidence establishes that the defendant is either guilty of the
greater offense of aggravated robbery or not guilty at all. Nothing in the record
suggests that the defendant could be found guilty of assault or aggravated assault. The
defendant was not entitled to an instruction on those offenses. See State v. Shaw, 619
S.W.2d 546, 549 (Tenn. Crim. App. 1981) (holding that evidence showing that the
defendant was guilty of robbery or no offense at all did not justify a jury instruction on
the offense of assault).
IV. SENTENCING FOR AGGRAVATED BURGLARY
The defendant contends that the trial court erroneously sentenced him to
fifteen years incarceration for the aggravated burglary conviction. Specifically, he
argues that the trial court erroneously used his Georgia cocaine conviction to sentence
him as a Range III, persistent offender in the present case. He asks this court to
determine an appropriate Range II sentence. The state concedes that the defendant
should have been sentenced as a Range II offender. However, the state argues that
the trial court correctly applied enhancement and mitigating factors and contends that
16 because the defendant received the maximum sentence as a Range III offender, he
should receive the ten-year maximum sentence as a Range II offender.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. T.C.A. §§ 40-35-401(d).
As the Sentencing Commission Comments to this section note, the burden is now on
the defendant to show that the sentence is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors
and principles that are relevant to sentencing under the 1989 Sentencing Act, we may
not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, “the presumption of correctness which accompanies the trial
court's action is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.”
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of
meaningful appellate review,
the trial court must place on the record its reasons for arriving at the final sentencing decision, identify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate how the mitigating and enhancement factors have been evaluated and balanced in determining the sentence. T.C.A. § 40-35-210(f) (1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).
Also, in conducting a de novo review, we must consider (1) the evidence,
if any, received at the trial and 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, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf and (7) the
17 potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).
The sentence to be imposed by the trial court for a Class B or C felony is
presumptively the minimum in the range when there are no enhancement or mitigating
factors present. T.C.A. § 40-35-210(c). Procedurally, the trial court is to increase the
sentence within the range based upon the existence of enhancement factors and then
reduce the sentence as appropriate for any mitigating factors. T.C.A. § 40-35-210(d)
and (e). The weight to be afforded an existing factor is left to the trial court's discretion
so long as it complies with the purposes and principles of the 1989 Sentencing Act and
its findings are adequately supported by the record. T.C.A. § 40-35-210, Sentencing
Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.
In the present case, the record reflects that the defendant had three prior
Class D felony convictions and one Class E felony conviction. The record also reflects
that on November 9, 1993, one day after the defendant committed the offenses in the
present case, the defendant was charged in Georgia with a cocaine offense. The trial
court in the present case sentenced the defendant to the maximum sentence of fifteen
years as a Range III, persistent offender.
Tennessee Code Annotated § 40-35-107(b)(1) provides that for the
purpose of determining the proper sentencing range, a prior conviction is one that
occurs before the commission of the offense for which the defendant is being
sentenced. See State v. Blouvett, 904 S.W.2d 111, 113 (Tenn. 1995). Because the
Georgia cocaine offense did not occur until one day after the defendant committed the
offense in the present case, the trial court could not consider that offense for the
purpose of classifying the defendant as a Range III, persistent offender. Thus, the
defendant should have been sentenced as a Range II, multiple offender.
18 With respect to the propriety of the trial court’s application of
enhancement and mitigating factors, the defendant does not point to any error in the
record, and we are unable to find any. The record supports the maximum Range II
sentence of ten years confinement to be served in the custody of the Department of
Correction.
In consideration of the foregoing and the record as a whole, we affirm the
convictions upon the jury verdicts of aggravated robbery and aggravated burglary. The
aggravated burglary sentence is modified to reflect a sentence as a Range II, multiple
offender to ten years confinement to be served in the custody of the Department of
Correction concurrent with the aggravated robbery sentence.
______________________________ Joseph M. Tipton, Judge
CONCUR:
__________________________ Joe G. Riley, Judge
__________________________ James Curwood W itt, Jr., Judge