State of Tennessee v. Kewan Callicutt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 8, 2013

STATE OF TENNESSEE v. KEWAN CALLICUTT

Direct Appeal from the Criminal Court for Shelby County
No. 10-04170 Lee V. Coffee, Judge

No. W2011-02516-CCA-R3-CD - Filed July 5, 2013

Defendant, Kewan Callicutt, was indicted by the Shelby County Grand Jury for attempted
especially aggravated robbery. Defendant was convicted as charged by a jury and sentenced
by the trial court to serve 12 years in the Department of Correction. On appeal, Defendant
asserts that: 1) the trial court erred by denying his motion to suppress his statements to the
police because he was under the influence of a drug or intoxicant when he waived his
Miranda rights; 2) there was insufficient evidence to support his conviction; and 3) his
sentence is excessive. Finding no error, we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
D. K ELLY T HOMAS, J R., JJ., joined.

Stephen C. Bush, District Public Defender; Phyllis Aluko, Assistant Public Defender; and
Mary Katherine Kent, Assistant Public Defender, Memphis, Tennessee, for the appellant,
Kewan Callicutt.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Anne Schiller, Assistant District
Attorney General, for the appellee, the State of Tennessee.

OPINION

Deangelo “Gold Mouth” Johnson, the victim, testified that on December 14, 2009,
between 8:00 and 9:00 p.m., he was “stranded” in the South Memphis downtown area and
was “looking for a ride home.” He called Cierra Lewis and offered her ten dollars to pick
him up. He also “had got her weed because she loved weed.” When Cierra arrived to pick
up Mr. Johnson, he saw that there were two males and another female in her car. One of the
males in the car was Defendant, whom Mr. Johnson heard Ms. Lewis refer to as “Murder.”
Mr. Johnson asked Ms. Lewis to drive him to his aunt’s house in East Memphis, “about
fifteen to twenty minutes” away. Mr. Johnson testified that Ms. Lewis and Defendant were
sitting in the backseat of the car. The other female, Jessica, was driving the car. Jessica said
she was “looking for somebody,” and they drove to “another neighborhood.” They then
drove to Emerald Square Apartments, where Mr. Johnson’s aunt lived. Mr. Johnson got out
of the car and handed Ms. Lewis ten dollars. Ms. Lewis told Defendant to put some jackets
in the trunk. Mr. Johnson was standing beside the car when Jessica unlatched the trunk. Mr.
Johnson began walking towards his aunt’s house, and Defendant ran after him with “a shot
gun - a rifle or something.” Defendant told Mr. Johnson to lay down and give him his
money. Mr. Johnson raised his hands. Mr. Johnson heard “some girls’ voices” say “‘Come
on, go.’” Mr. Johnson testified that Defendant then shot him in the leg, and he “hit the
ground.” Mr. Johnson closed his eyes and “started crawling.” When he opened his eyes
again, he saw his money on the ground. He testified that he had “[a]bout two fifty - two
seventy - around that much.” The money was “torn apart,” and Mr. Johnson believes that the
money had been hit by buckshot.

Mr. Johnson testified that he had undergone one or two surgeries on his leg and was
hospitalized for “[a]bout two and a half weeks.” He did physical therapy while he was
hospitalized, and he was prescribed pain medication for one month after he was discharged
from the hospital. Mr. Johnson identified Defendant in a photo lineup as the person who shot
him.

Memphis Police Officer Lawrence Taylor responded to the shooting. When he
arrived, Mr. Johnson was lying on the ground, and he “had blood on him.” Officer Taylor
called for an ambulance. He found a shotgun shell on the pavement by the victim.

Detective Robert Wilkie testified that he went to the hospital to show the victim a
photo lineup on December 17, 2009. He testified that it took the victim only “a few seconds”
to identify Defendant as the person who shot him.

Detective Byron Braxton interviewed Defendant on December 17, 2009. Defendant
signed a form acknowledging his rights at 3:14 p.m. Detective Braxton testified that
Defendant initially denied any involvement in the shooting. Defendant tested positive for
the presence of gunpowder residue on his hands, and he told Detective Braxton that he had
recently fired a weapon in the air, but he stated that he was not in the area of the shooting.
At 6:06 p.m., Defendant gave another statement to Detective Braxton. During the interview
with Detective Braxton, Defendant stated that on December 14, 2009, he shot someone
named “Gold Mouth.” He stated that “[i]t was Jessica and CC [Cierra Lewis]’s idea to rob
dude.” Defendant told Detective Braxton that Ms. Lewis told him that the victim had money,

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and that they had discussed robbing the victim “a day or two before he got robbed.”
Defendant stated that they picked up the victim and drove him to his aunt’s apartment. They
were still “debating on whether or not” to rob the victim when they dropped him off. As the
victim got out of the car, Ms. Lewis said, “go, go” to Defendant, and Jessica popped the
trunk. Defendant went to the trunk and got out a shotgun and followed the victim. He told
Detective Braxton, “Then I got close enough, and I was telling him to get down on the
ground, and he was saying he ain’t got nothing. I told him like five times. Like the fifth
time, he ain’t listened. I was trying to shoot it to the left side of him, but somehow he got hit
in the leg with it. When he was falling to the ground, I heard him screaming.” Defendant
then left with Ms. Lewis and Jessica Thomas. They “picked up some pills” and went to Ms.
Lewis’s house. Defendant stated that he had never met the victim before the incident. He
stated that they targeted the victim “[b]ecause CC [Lewis] say he be having stacks.”
Defendant stated that he did not intend to kill the victim but that “[i]t was [his] intention to
get the money.” He stated that he later took the gun to his cousin’s house. Detective Braxton
testified that Defendant did not appear to be under the influence of drugs or alcohol and that
he was alert, coherent, and responsive to his questions. Defendant signed the written
statement.

Sentencing hearing

At the sentencing hearing, the State introduced Defendant’s presentence report, as
well as a certified copy of the judgment for Defendant’s 2003 conviction for aggravated
robbery, for which he received a sentence of eight years. The State presented no other proof
at the sentencing hearing.

Defendant testified at the sentencing hearing that he had lived in Shelby County since
he was twelve years old. He testified that he had a juvenile record and that he had been
referred for a psychological evaluation. He did not remember his diagnosis, but he testified
that it was “extreme emotionally or something. But then the other one, I forgot what it was.”
He testified that he did not complete his sessions because his family was unable to pay for
them. Defendant testified that he completed two anger management programs while
incarcerated on the charge in this case. Defendant testified that he lost his job prior to the
offense in this case and that caused him to make “the wrong choice.” Defendant testified that
he was charged with assault and vandalism in 1999. Defendant also acknowledged an
aggravated assault charge in 1999 that was amended to assault. He testified that the offense
was against a female named Cierra, but not Cierra Lewis, who was also charged in this case.
Defendant testified, “[m]e and her had some problems, and they were saying that I had – that
I had tortured her or some stuff, and I had burned her with an iron.” Defendant also had a
theft charge in 1999. Defendant did not recall charges of stalking and aggravated burglary.
He acknowledged that he was charged with theft of a vehicle, aggravated assault, reckless

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endangerment, and vandalism over $500 in 2002. He testified that he and another man
followed the victim home and “she had got carjacked for a truck, and [they were] put on a
high-speed chase, and [they] got locked up for that.” Defendant testified that since he had
been incarcerated for the offense in this case, he had been “saved now through the Holy
Spirit” and he was “a changed man[.]”

At the conclusion of the sentencing hearing, the trial court noted that it had considered
the statements and arguments of counsel, the facts presented at trial, the presentence report,
Defendant’s testimony, statistical data, enhancement and mitigating factors, the principles
of sentencing, and Defendant’s potential for rehabilitation. The court classified Defendant
as a Range I standard offender. The court found that Defendant had one prior conviction of
aggravated robbery and applied it as an enhancement factor that Defendant had a previous
history of criminal convictions in addition to those necessary to establish the appropriate
range. The court noted that although Defendant was charged with that offense at the age of
17, Defendant was prosecuted as an adult and sentenced to eight years, and the court gave
that factor “great weight.” The court also gave “great weight to [Defendant’s] juvenile
history.” The court also found that Defendant was a leader in the commission of an offense
involving two or more criminal actors and noted that Defendant “had the shotgun.”

The trial court rejected defense counsel’s argument that Defendant was acting under
the domination of another person and found that Defendant “was, in fact, a willing
participant in this robbery, by his own [ad]mission from the statements that he gave the
police in his second statement was because he thought [the victim] had a large sum of money
on him, and he was a willing participant in which he and other persons agreed to commit this
robbery for money.” The court gave “some weight to the fact that [Defendant] did not plan
the robbery itself; but [Defendant] was recruited, and he was a willing participant in this
crime.” The trial court sentenced Defendant to serve 12 years, the maximum sentence within
the applicable range. The trial court further found that the length of Defendant’s sentence
made him ineligible for probation, but the court found that even if it had considered
probation as an alternative sentence, “confinement in this case is necessary because the
defendant does have a long history of criminal conduct” and that measures less restrictive
than confinement have been frequently and recently applied unsuccessfully. The court noted
that efforts to rehabilitate Defendant had failed. The court also noted that “deterrence is
particularly suitable in this case[.]”

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Analysis

Motion to suppress

Defendant contends that the trial court erred in denying his motion to suppress his
statement to the police because it was elicited without a voluntary and knowing waiver of his
Miranda rights. Defendant argues that his statements to Detective Braxton were not freely
and voluntarily given because he was under the influence of drugs at the time.

At a pretrial suppression hearing, Detective Braxton testified that prior to interviewing
Defendant on December 17, 2009, he advised Defendant of his Miranda rights. Defendant
indicated that he understood his rights and signed his initials on the advice of rights form.
The interview with Defendant lasted approximately one and a half hours. Defendant initially
told investigators that he “had some type of run-in with some individuals, and he fired a
weapon in the air.” Defendant denied any involvement in the shooting in this case.
Defendant signed the first statement. Defendant then asked to speak to Detective Braxton
again, and Defendant gave a second statement, in which he told of his intention to rob the
victim because he had heard “that [the victim] had stacks of money.” Defendant stated that
“he pulled a shotgun on [the victim], and told him to get down, and [Defendant] said that [the
victim] didn’t respond to his orders fast enough, and [Defendant] felt that [the victim] was
armed and might go for a weapon. So, that’s when he shot . . . the victim.” Defendant
signed the second statement. Detective Braxton testified that Defendant did not appear to
be intoxicated during either statement. Defendant was taken into the interview room at 1:37
p.m. At 2:27 p.m., Detective Braxton “checked on him” and gave him a cup of water to
drink. Defendant “seemed calm.” Defendant signed the advice of rights form at 3:12 p.m.,
and Detective Braxton began the interview. Detective Braxton testified that Defendant
“spoke intelligently” and was “very articulate.” Detective Braxton advised Defendant of his
rights again before Defendant gave his second statement. Detective Braxton testified that
Defendant “seemed very remorseful when he gave the second statement.” Detective Braxton
testified that if Defendant had exhibited signs of being intoxicated, he would have terminated
the interview. Detective Braxton also testified that Defendant did not request an attorney
during the interview.

Defendant testified that he was arrested on December 17, 2009, and taken to the police
station. He did not remember speaking with Detective Braxton. Defendant testified that he
“remember[ed] telling them that [he] didn’t know what he was talking about.” He testified
that the only thing about the interview he remembered was when Detective Braxton gave him
a cup of water and checked his hands for gunpowder residue. He did not remember reading
or signing the advice of rights form or giving two statements. Defendant testified that he
could not remember “because [he] had weed in [his] system, and cocaine and ‘shrooms.”

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Defendant testified he “was hallucinating.” He testified that he ingested mushrooms one
hour before police arrested him at his grandmother’s house. He explained the hallucinations
as “[l]ike lights and stuff be [sic] different, just lights get bigger. Saw a chair get bigger in
the room, or whatever.” Defendant testified that his “mind just be [sic] somewhere else, just
roaming.” Defendant testified that he could read and he completed school through eighth
grade.

At the conclusion of the suppression hearing, the trial court accredited Detective
Braxton’s testimony and denied Defendant’s motion to suppress the statements. The trial
court found that Defendant’s second statement was “a very detailed statement” that was
consistent with statements Detective Braxton took from the victim and Jessica Thomas.

On appeal from a trial court’s ruling on a motion to suppress, the trial court’s findings
of fact should be upheld unless the evidence preponderates to the contrary. State v. Hanning,
296 S.W.3d 44, 48 (Tenn. 2009). The credibility of witnesses, the weight and value of the
evidence, and the resolution of conflicts in the evidence are matters entrusted to the trial
judge. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, when the trial court’s
findings of fact at a suppression hearing are based solely on evidence not requiring credibility
determinations, “the rationale underlying a more deferential standard of review is not
implicated.” State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000). Such findings of fact are
reviewed de novo. State v. Payne, 149 S.W.3d 20, 25 (Tenn. 2004).

“The Fifth Amendment to the United States Constitution provides in part that ‘no
person . . . shall be compelled in any criminal case to be a witness against himself.’” State
v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005) (quoting U.S. Const. amend. V). “Similarly,
Article I, section 9 of the Tennessee Constitution states that ‘in all criminal prosecutions, the
accused . . . shall not be compelled to give evidence against himself.’” Id. (quoting Tenn.
Const. art. I, § 9). Notwithstanding, an accused may waive his right against self-
incrimination. Id. (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). The accused’s
waiver of his right against self-incrimination under Miranda must be made intelligently,
knowingly, and voluntarily to be held constitutional. Id. (citing Miranda, 384 U.S. at 444).

The United States Supreme Court has interpreted the Fifth Amendment in part to
require that an incriminating statement or confession be freely and voluntarily given in order
to be admissible. This even applies to statements obtained after the proper Miranda warnings
have been issued. Statements and confessions not made as a result of custodial interrogations
must also be voluntary to be admissible. It must not be extracted by “any sort of threats or
violence, nor obtained by any direct or implied promises, however slight, nor by the exertion
of any improper influence.” Moreover, due process requires that confessions tendered in
response to either physical or psychological coercion be suppressed. This has evolved into

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the “totality of circumstances” test to determine whether a confession is voluntary. Id.
(internal citations omitted). Thus, to determine whether an accused’s statements were
voluntary, the appellate courts review the totality of the circumstances surrounding the
waiver of the right against self-incrimination. Id. at 249 (citing State v. Stephenson, 878
S.W.2d 530, 545 (Tenn. 1994), abrogated on other grounds by State v. Saylor, 117 S.W.3d
239 (Tenn. 2003)).

We conclude that the evidence supports the trial court’s finding that Defendant’s
statements to police were freely and voluntarily made. Detective Braxton testified that
Defendant did not appear to be under the influence of any drug or intoxicant. He testified
that Defendant was “neat” in appearance and that he was articulate. Defendant’s second
statement included details that were corroborative of the investigation. The trial court
accredited Detective Braxton’s testimony, and the evidence does not preponderate against
the trial court’s finding. Defendant is not entitled to relief on this issue.

Sufficiency of the evidence

Defendant next challenges the sufficiency of the evidence supporting his conviction
for attempted especially aggravated robbery. Specifically, Defendant asserts that the State
failed to establish beyond a reasonable doubt that the victim suffered serious bodily injury.

An appellate court’s standard of review when a defendant questions the sufficiency
of the evidence on appeal is “whether after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This
court does not reweigh the evidence; rather, it presumes that the jury has resolved all
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of
the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury's verdict.” Id.; State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). “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). The standard of
proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “‘is

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the same whether the conviction is based upon direct or circumstantial evidence.’” Id.
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The duty of this court “on
appeal of a conviction is not to contemplate all plausible inferences in the [d]efendant’s
favor, but to draw all reasonable inferences from the evidence in favor of the State.” State
v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

Defendant was convicted of attempted especially aggravated robbery. Especially
aggravated robbery is robbery accomplished with a deadly weapon where the victim suffers
serious bodily injury. Tenn. Code Ann. § 39-13-401(a). Robbery is the intentional or
knowing theft of property from the person of another by violence of putting the person in
fear. Tenn. Code Ann. § 39-13-401(a). “Serious bodily injury” is defined as “bodily injury
that involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme
physical pain; (D) Protracted or obvious disfigurement; [or] (E) Protracted loss or substantial
impairment of a function of a bodily member, organ or mental faculty[.]” Tenn. Code Ann.
§ 39–11–106(a)(34).

A person commits criminal attempt when the person, acting with the
kind of culpability otherwise required for the offense . . . [a]cts with intent
to complete a course of action or cause a result that would constitute the
offense, under the circumstances surrounding the conduct as the person
believes them to be, and the conduct constitutes a substantial step toward
the commission of the offense.

Tenn. Code Ann. § 39-12-101(a)(3) (2010 Repl.).

Defendant contends that the evidence at trial was insufficient to show that the victim
suffered serious bodily injury. Defendant cites State v. Sims, in which this court held that the
evidence of the victim’s injuries were insufficient as a matter of law to support a finding of
serious bodily injury based on extreme physical pain or protracted or obvious disfigurement.
909 S.W.2d 46, 49–50 (Tenn. Crim. App. 1995), abrogated on other grounds by State v.
Charles Justin Osborne, No. 01C01–9806–CC–00246, 1999 WL 298220 (Tenn. Crim. App.,
at Nashville, May 12, 1999). In Sims, the victim suffered a broken nose, a bruised
cheekbone, and two black eyes as a result of being struck in the face with a pistol. Id. at 48.
Interpreting the statutory meaning of “extreme physical pain,” this court reasoned, “[w]e do
not believe that the pain commonly associated with a broken nose is extreme enough to be
in the same class as an injury which involves a substantial risk of death, protracted
unconsciousness, protracted or permanent disfigurement or the loss or impairment of the use
of a bodily member, organ or mental faculty.” Id. at 49.

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 Within one week after Defendant’s brief was filed in this case, the Tennessee Supreme
Court released its opinion in State v. Farmer, 380 S.W.3d 96 (Tenn. 2012). The State did
not mention Farmer in its brief which was filed almost two months following the release of
the opinion. In Farmer, our supreme court clarified the definition of serious bodily injury
and held that a gunshot wound does not necessarily cause bodily injury that involves “a
substantial risk of death.” In that case, the victim was shot in the leg. The bullet passed
through the victim’s leg. The wound required minimal medical treatment and did not cause
the victim to suffer a loss of consciousness, extreme pain, disfigurement, or impairment. The
court noted that hospital records classified the victim’s pain as “mild” to “moderate” and that
the victim did not testify as to the degree of pain he experienced. Id. at 101. The court
concluded that “[a] jury could not reasonably infer from [the victim]’s testimony, the hospital
records, and the nature of his injury that [the victim]’s wound involved extreme pain.” Id.
at 101-102. The court vacated the defendant’s conviction for especially aggravated robbery,
finding that the State failed to present sufficient proof of a serious bodily injury, and
modified Defendant’s conviction to aggravated robbery. Id. at 103.

In the case sub judice, Defendant was convicted of attempted especially aggravated
robbery. We conclude that it is unnecessary for the proof to show that Defendant actually
inflicted serious bodily injury to the victim for the evidence to support his conviction. To
sustain a conviction for attempt, “the proof must only show that [Defendant] took a
substantial step toward completion of the crime while acting with the required culpability.”
State v. Larry Darnnell Pinex, No. M2007-01211-CCA-R3-CD, 2008 WL 4853077, at *8
(Tenn. Crim. App. at Nashville, filed Nov. 6, 2008), perm. app. denied (Tenn., May 11,
2009) (court concluded that proof of serious bodily injury was not necessary to sustain
conviction for attempted especially aggravated burglary).

Viewed in the light most favorable to the State, the evidence shows that after the
victim got out of the car in which Defendant was a passenger, Defendant retrieved a shotgun
from the trunk of the vehicle, followed the victim, and ordered the victim to lay down and
give him his money. Defendant then shot the victim at close range. The victim immediately
fell to the ground and “started crawling to the gate – started screaming, ‘Help.’” The victim
underwent surgery and was hospitalized for two and a half weeks following his injury. He
was also prescribed pain medication. We conclude that the proof established that Defendant
took substantial steps toward committing especially aggravated robbery. Defendant is not
entitled to relief on this issue.

Sentencing

Defendant also asserts that his sentence is excessive. Defendant argues that the trial
court should not have considered his juvenile criminal history in enhancing his sentence

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above the statutory minimum and that the evidence did not support the trial court’s finding
that Defendant was a leader in the commission of the offense. Defendant also argues that the
trial court failed to properly consider all mitigating factors, including Defendant’s mental
condition.

In determining the proper sentence, the trial court must consider: (1) any evidence
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) statistical
information provided by the administrative office of the courts as to sentencing practices for
similar offenses in Tennessee, (7) any statement that the defendant made on his own behalf,
and (8) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40–35–102, –103,
-210; see State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229,
236 (Tenn. 1986).

Challenges to a trial court’s application of enhancement and mitigating factors are
reviewed under an abuse of discretion standard. State v. Bise, 380 S.W.3d 682, 706 (Tenn.
2012). We must apply “a presumption of reasonableness to within-range sentencing
decisions that reflect a proper application of the purposes and principles of our Sentencing
Act.” Id. at 707. “[A] 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.” Id. at 706. “So long as there are other reasons consistent with the
purposes and principles of sentencing, as provided by statute, a sentence imposed by the trial
court within the appropriate range should be upheld.” Id.

The Defendant contends that the trial court misapplied enhancement factor (1), that
Defendant had a previous history of criminal convictions or criminal behavior in addition to
those necessary to establish the appropriate range. Specifically, Defendant argues that the
trial court erred by considering Defendant’s juvenile record, and Defendant asserts that the
trial court improperly “gave great weight to an inappropriate component of the prior criminal
history enhancement factor[.]” We note that the transcript of the sentencing hearing reflects
that the trial court, in applying enhancement factor (1), found that in addition to Defendant’s
prior aggravated robbery conviction in 2003, “[t]his court also finds that as part of his
juvenile record that [Defendant] has been arrested; that he has been adjudicated delinquent
of other offenses while as a juvenile, and the court gives great weight to his juvenile history.”

In State v. Jackson, the Tennessee Supreme Court considered whether enhancement
factors (1) and (16) (regarding enhancement of a sentence based on a defendant’s prior
juvenile record) were mutually exclusive. 60 S.W.3d 738, 742 (2001). The court stated,
“[b]ecause the legislature is not presumed to have passed or enacted useless legislation,

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factor (1) must necessarily apply only to adult criminal conduct, and factor (20) [as amended,
factor (16)] must apply exclusively to juvenile adjudications of delinquent acts.” Id. (internal
citation omitted). Although Defendant asserts that the trial court improperly considered
Defendant’s juvenile record under enhancement factor (1), we conclude that the trial court’s
consideration of Defendant’s juvenile record was not error and could properly be considered
under enhancement factor (16), which states, “[t]he defendant was adjudicated to have
committed a delinquent act or acts as a juvenile that would constitute a felony if committed
by an adult.” Tenn. Code Ann. § 40-35-114(16) (2010 Repl.). Furthermore, even without
the trial court’s consideration of Defendant’s juvenile record, the trial court properly applied
enhancement factor (1) based on Defendant’s prior conviction for aggravated robbery.

The Defendant also contends that the trial court misapplied enhancement factor (2),
that Defendant was a leader in the commission of an offense involving two or more criminal
actors. The record supports the trial court’s finding. According to the victim’s testimony and
Defendant’s statement, Defendant got out of the vehicle alone, retrieved a shotgun from the
trunk, and shot the victim in the leg. Defendant asserts that because there was evidence that
Defendant did not know the victim, and that Ms. Lewis and Ms. Thomas “concocted the
scheme” to rob the victim, Defendant was not a leader in the commission of the offense. We
disagree. Enhancement for being a leader in the commission of the offense does not require
the defendant to be the sole leader but only that he be “a” leader. State v. Hicks, 868 S.W.2d
729 (Tenn. Crim. App. 1993).

Finally, Defendant asserts that the trial court erred by failing to consider Defendant’s
mental condition in mitigation of his sentence. Defendant testified at the sentencing hearing
that he underwent a psychological evaluation and that he was told he had “[e]xtreme
emotion[al] problem[s],” but that he forgot his other diagnosis. Defendant testified that he
did not complete his court-ordered treatment because his family could not afford to pay for
it. The trial court found that there was nothing in the record to indicate that Defendant was
“not competent.” We conclude that the trial court did not err in refusing to give weight to
this mitigating factor.

Defendant’s sentence is within the statutory range, and the trial court followed the
statutory sentencing procedure and made findings of fact that are supported in the record.
Sufficient evidence exists to support Defendant’s sentence. Because the application of
enhancement and mitigating factors to adjust a sentence was rendered advisory by the 2005
amendments, we reiterate that the trial court may set a sentence anywhere within the
applicable range so long as the sentence is consistent with the principles and purposes of the
Act, regardless of the presence or absence of mitigating and enhancement factors. The trial
court in this case thoroughly considered the purposes and principles of the Sentencing Act

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in rendering its decision. We conclude that the trial court did not abuse its discretion in
setting Defendant’s sentence. Defendant is not entitled to relief on this issue.

CONCLUSION

The judgment of the trial court is affirmed.

_________________________________
THOMAS T. WOODALL, JUDGE

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