State of Tennessee v. Antwain Green

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 9, 2012 Session

STATE OF TENNESSEE v. ANTWAIN GREEN

Appeal from the Criminal Court for Davidson County
No. 2009-D-3571 J. Randall Wyatt, Jr., Judge

No. M2012-00234-CCA-R3-CD - Filed February 20, 2013

The defendant, Antwain Green, was convicted of two counts of attempted second degree
murder of Anthony Fizer and Carrie Searcy, Class B felonies, and three counts of aggravated
assaults on, Fizer, Searcy and Laura Dykes, Class C felonies. The aggravated assault
convictions of Fizer and Searcy merged with the two attempted second degree murder
convictions. The defendant was sentenced as a Range II offender to eighteen- year terms for
each attempted murder conviction and a nine- year term for the aggravated assault conviction
of Dykes, to be served consecutively to each other for an effective sentence of forty-five
years. The defendant appeals his convictions and sentences, asserting that the evidence
introduced at trial was insufficient to sustain the convictions, that a witness was improperly
permitted to testify regarding one victim’s identification of the defendant, and that his
sentences are improper and excessive. Having reviewed the record, we conclude that the
evidence was sufficient to sustain the convictions, that the error in admitting the testimony
regarding identification was harmless, and that the trial court did not abuse its discretion in
sentencing. Accordingly, we affirm the judgments of convictions and sentences of the trial
court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and J EFFREY S. B IVINS, J.J., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Antwain Green.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Ben Ford and Brian Ewald,
Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION
 I. Factual and Procedural History

On August 17, 2009, Laura Dykes, an assistant public defender, and Carrie Searcy,1
her intern, were at a housing project interviewing witnesses in an unrelated case when they
were caught between Anthony Fizer, a victim in this case, and a man who was shooting at
him. Both Ms. Searcy and Mr. Fizer were injured, and Mr. Fizer gave the police information
which led to the defendant’s arrest. The defendant was charged with two counts of attempted
first degree murder and three counts of aggravated assault. At trial, the State presented the
following evidence:

Daniel Crockett of the Metropolitan Nashville Police Department testified that on
August 17, 2009, he responded to a report that shots had been fired at a housing project. He
was directed to a victim who was lying on the floor among family members and who
informed Officer Crockett that he had been shot while riding his bicycle. Officer Crockett
attempted to locate the scene of the shooting in order to secure the area, but was unable to
find anything. Officer Crockett testified that the victim stated he did not know who had shot
him. On cross-examination, Officer Crockett confirmed that the victim also could not give
a description of the shooter, and he stated that he did not search the area around the victim
to determine if the victim might have had a gun.

The State then presented as evidence the 911 calls related to the shooting. The
custodian of records with Davidson County’s 911 service authenticated a recording of five
emergency calls reporting the shooting. One resident at the housing project reported that two
men in their twenties were shooting, with about fifteen shots fired. One man was wearing
all black, and another had on a white shirt. Children were in strollers at the time, and the
caller could not see the person at whom they were shooting. Another resident called to say
that three or four people were wearing black and shooting through the projects. One resident
reported multiple gunshots and that somebody was shot, that there was a “big crowd” of
adults shooting, and that as she had started to walk down to the scene, they had started
shooting again. Another caller reported that there was “a bunch of shooting” as children
were going to get off the school bus.

The 911 calls included the call from Ms. Dykes seeking medical aid for Ms. Searcy,
who had been shot. Ms. Dykes told the emergency responder that one teenage boy had been
shooting at another. Ms. Dykes confirmed that one man had on all black clothing, then
stated, “Both of them may have, for all I know. I don’t know. We heard the gunshots; we got
behind the cars and they came running; she got nicked.” Ms. Dykes later stated, “We saw

1
Ms. Searcy’s name at the time of the incident was Carrie Gleaves, and she is intermittently referred
to as Ms. Gleaves in the record.

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them both running by us, but you know, I was busy trying to hide. There was a whole pile
of people out there. We were talking to a grandmother and her, like, four-year-old little girl
when the first set of shots went off.”

The State next presented the testimony of Ms. Searcy. Ms. Searcy testified that she
and Ms. Dykes were interviewing witnesses for an unrelated case at the housing project
where the shooting took place. She testified that they had finished interviewing a witness
and had stopped to talk with an elderly resident when they heard four or five gunshots. At
that point, they couldn’t see anyone, but could hear sounds like firecrackers and a “ting” from
something striking a metal object; Ms. Searcy recognized the sounds as gunfire. Ms. Dykes
suggested to Ms. Searcy and the elderly resident, who had a small child with her, that they
go to Ms. Dykes’ nearby car, and Ms. Searcy picked up the child and started towards the car.
The resident, however, wanted to return to her home, so Ms. Searcy went back and handed
the child to her and then followed Ms. Dykes, who was almost to her vehicle. Ms. Dykes
was crouched down behind her car in the street.

When Ms. Searcy was ten or fifteen feet from the car, she felt something hit her arm.
She initially thought it might have been a rock but then realized there was extensive bleeding.
Around the same time, she saw a person running past her going the opposite direction, heard
a “pop,” and realized she was between two people chasing each other. Ms. Searcy stood
behind the car, and the pursuer moved in front of the car and walked down the center of the
street from ten feet in front of the car to approximately the middle of the car, at which point
Ms. Dykes grabbed Ms. Searcy and asked her to get down on the other side of the vehicle.
Ms. Searcy testified she only saw one person chasing the runner. The person chasing the
runner was a light-skinned black male of average height and medium build, and Ms. Searcy
saw him holding and firing a gun. Ms. Searcy identified the defendant as the person firing
the gun and stated that she only saw one individual fire a gun that day. The gun was fired
six or seven times after she got to the car, and the shooter was aiming at the runner. The
shooter continued to walk down the street, and Ms. Searcy told Ms. Dykes that she was
injured. The blood was spurting out of Ms. Searcy’s wound with every heartbeat. When the
women realized that the shooter had passed them, they both crawled through the passenger
door and drove away. The shooter turned around when the car began to move and continued
to stand in the road. Ms. Dykes immediately called 911 and coordinated a meeting place for
the ambulance.

Ms. Searcy testified that a detective presented her with a photographic array that night
while she was on pain medication, “pretty out of it,” and “falling asleep every couple of
minutes.” Ms. Searcy testified that she told the detective that she could pick out the shooter,
but that she did not feel comfortable doing so at the time due to the pain medication and
because she hadn’t slept.

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 Ms. Searcy testified that the bullet exited her body, although small fragments remain
in her arm. She testified that the bone was shattered and a metal plate with screws was
inserted into her arm. She underwent physical therapy to “get some range of motion back.”

On cross-examination, Ms. Searcy testified that she found out an arrest had been made
later that same week but did not speak to the detective again until the preliminary hearing.
Ms. Searcy denied having said that it all happened so fast that she could not make an
identification. She asserted that she had told the officer she did not want to make an
identification at the time and would do it later; Ms. Searcy testified that she felt her
identification, even if correct, could be called into question because she was on heavy
medication. Ms. Searcy testified that she believed that she gave the officer a physical
description of the shooter but told him that she “would not know who the person was, a name
for him to find. He said the other victim at the hospital had given him the name and that is
how he had come up with the line-up.” Ms. Searcy testified that at first she could not see the
gunfire, and more than one person could have been shooting initially. She testified that the
person running was average height, with dark skin and shoulder-length braids or dreads and
that she did not see him holding a weapon. She testified that all the shots sounded as though
they were coming from one gun.

Kevin Crotts, an officer with the Metropolitan Nashville Police Department, testified
that, upon his arrival in response to a shots fired call, no crime scene had yet been located.
Officer Crotts collected statements and was called away to assist with an accident on the
interstate. On his return, a crime scene had been located, and he recovered three shell casings
close to where Ms. Searcy testified the shooting occurred. On cross-examination, Officer
Crotts clarified that at first, a crime scene couldn’t be found because officers were looking
in the wrong place. He testified that it was not uncommon for police to receive a report of
shots fired at the housing project where the shooting took place. He agreed that if a shooting
took place overnight, there would be casings from the shooting.

Detective Mark Anderson, who was assigned to the gang unit with the Nashville
police department, testified that he helped arrest the defendant at the defendant’s girlfriend’s
house. Detective Anderson searched the house after the defendant’s arrest and found $1,800
in cash in a dresser drawer and a loaded 9mm handgun underneath the bottom dresser
drawer. The defendant’s girlfriend claimed the items did not belong to her. Detective
Anderson submitted the weapon, projectiles, and magazine for fingerprinting and to the
ballistic database, and he testified that a match was made from the database to a shooting.
On cross-examination, Detective Anderson testified that the magazine was fairly full, if not
completely to capacity, and that a 9mm gun would generally hold ten or twelve rounds. He
testified that he was not aware it was possible to get fingerprints from cash and he had not
submitted the cash for fingerprint testing or any of the items to test for DNA. He testified

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he did not request fingerprinting on the dresser where the cash and gun were found. The
defendant was arrested several days after the shooting, and Detective Anderson had no
knowledge regarding whether other persons had had access during that time to the residence
where he was arrested. The defendant’s girlfriend was in the presence of Detective Anderson
and the United States Marshalls when she denied ownership of the money and weapon.

Isaac Martinez established that he delivered the weapon and bullets and the three
cartridge casings to the Tennessee Bureau of Investigation for testing on October 21, 2009.
Wayne Hughes testified that he test fired the gun twice on August 31, 2009, and that he put
the casings and one bullet into a database. On cross-examination, Mr. Hughes testified that
he did not wear gloves when he tested weapons and that the lab would get the weapon to
fingerprint it before he fired it.

The State presented the expert testimony of Dr. Mickey Ott, a trauma surgeon at
Vanderbilt University Medical Center. Dr. Ott testified that he treated Anthony Fizer, who
had ballistics injuries to his buttocks, thigh, scrotum, and elbow. He also reviewed Ms.
Searcy’s medical records and testified that she was shot in the lower right arm, fracturing the
bone, and that she had orthopedic surgery to fix the fracture.

The third victim, Ms. Dykes, testified that she was a public defender and that Ms.
Searcy was working as her intern on August 17, 2009. Ms. Dykes’ testimony regarding
hearing the shots and deciding to run to the car was consistent with that of Ms. Searcy. As
Ms. Searcy and Ms. Dykes ran towards the car, Ms. Dykes saw a muzzle flash. Ms. Dykes
saw a man run from between two buildings, across the grass, into the middle of the street,
and down the street toward Ms. Dykes. Another man followed. Ms. Dykes could not tell if
the man being chased had been shot. Ms. Dykes testified that she and Ms. Searcy reached
the car at about the same time and crouched down behind the back of the car. At some point
as the women ran to the car, the man being chased passed them. They were crouched behind
the car as the man shooting ran past them. They were “so close to him that had he chosen
to shoot at us he could have hardly missed.” Ms. Searcy told Ms. Dykes that she had been
shot while they were crouched behind the car. Then they climbed in the passenger side of
the car and drove away. Ms. Dykes checked the rearview mirror before leaving and felt the
shooter was far enough away that he would not be able to hit them with a handgun. Ms.
Dykes called 911 and arranged to meet an ambulance to take Ms. Searcy to the hospital. Ms.
Dykes was asked if she got a good look at either man and answered, “Not a bit.” During the
incident, Ms. Dykes was afraid that she would be shot and killed.

The State then introduced evidence to connect the weapon found in the dresser with
the casings recovered from the scene. A forensic technician with the Tennessee Bureau of
Investigation testified that she received the three shell casings and the firearm and bullets on

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October 21, 2009. Alex Brodhag, a firearms examiner with the Tennessee Bureau of
Investigation and an expert witness for the State, testified that he had examined the three
cartridge cases and the firearm with the bullets. Mr. Brodhag determined that the three cases
had been fired from the 9mm weapon, which had a magazine that holds 10 cartridges. On
cross-examination, Mr. Brodhag testified that he did not receive any bullets which had been
fired and as a result did not match any bullets to the gun. He also confirmed that he could
not determine if the cases had been moved from their original location or how long they had
been on the ground. He testified that the Tennessee Bureau of Investigation had the capacity
to test for fingerprints and DNA and that such testing would only be conducted when
requested by the police.

Anthony Fizer testified that he had been shot on August 17, 2009, in his leg, arm, and
testicle. He testified that after he was shot, he went to his sister’s home at the housing project
and then to Vanderbilt University Hospital. Mr. Fizer refused to answer further questions
and was sentenced to jail time for contempt of court.

The State’s final witness was Detective Andrew Injaychock of the Metropolitan
Nashville Police Department. Detective Injaychock testified that he responded to the
shooting by finding the location where the ambulance had picked up Ms. Searcy and
examining the bullet holes in Ms. Dykes’ vehicle. Detective Injaychock then testified that
he developed the defendant as a suspect. When asked the basis of that, Detective Injaychock
referred to an interview with Mr. Fizer; however, the court sustained the defendant’s
objection to Detective Injaychock’s testimony regarding what was said. Detective
Injaychock further testified that after “the first interview where the name was developed,”
he used information given by Mr. Fizer to locate a crime scene. He testified that Mr. Fizer
was found at an apartment very near where the casings were found on the ground. Detective
Injaychock testified that he put together a photographic line-up which was presented to Mr.
Fizer. The defendant objected to testimony regarding whether Mr. Fizer was able to make
an identification, but the court overruled the objection, and Detective Injaychock testified
that Mr. Fizer identified the defendant from the array.2 Detective Injaychock then
interviewed Ms. Searcy and Ms. Dykes and signed an arrest warrant for the defendant.

Detective Injaychock testified that when the defendant was taken into custody, a
weapon which matched the shell casings at the scene was recovered. The weapon was not
tested for fingerprints. Detective Injaychock conducted an interview with the defendant
during which the defendant stated that Mr. Fizer (who was apparently also known as

2
This issue was also discussed by the parties prior to Mr. Fizer’s refusal to testify, and the defendant
noted his objection to Detective Injaychock testifying to “anything [Mr. Fizer] said to him” if Mr. Fizer
refused to testify.

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“ManMan”) had been with some men who had recently robbed the defendant. When
Detective Injaychock referred to the cash recovered at the time of the defendant’s arrest as
$8,000, the defendant corrected him, saying it was $1,900. Detective Injaychock testified
that he had two street names to help him identify the defendant, “Yellow Boy” and “Twan.”
The defendant had “Yellow Boy” tattooed on his arms. The police also received information
that the defendant might be at the Jo Johnson housing development, and the defendant had
“Jo Johnson” tattooed on his shoulder. When asked about the nickname “Twan,” the
defendant stated that his relatives had used that name when he was younger. The State then
sought to introduce the photographic array, and the defendant objected. The trial court
sustained the objection. The State then introduced an audio recording of the interview with
the defendant. Detective Injaychock testified that no guns were found when Mr. Fizer was
located as a victim. He testified that he did not test the weapon found with the defendant for
DNA because he did not believe much DNA would be recovered.

In the interview with Detective Injaychock, the defendant asserted he had been with
his girlfriend, whose last name he did not know, at the time the crime was committed. When
asked about his relationship with Mr. Fizer, the defendant claimed that Mr. Fizer was present
when the defendant had been robbed of $500 a few days before the shooting. He denied
ownership of the gun found when he was arrested. During the interview, Detective
Injaychock told the defendant repeatedly that “ManMan” had picked him out of a
photographic line-up. He also told the defendant that Mr. Fizer had told the police that he
was shot by “Yellow Boy,” who lived at Jo Johnson. Detective Injaychock told the defendant
that a second suspect was being developed and that the suspect would implicate “Yellow
Boy.” The defendant responded that he was no longer called Yellow Boy or Twan.
Detective Injaychock told the defendant that Mr. Fizer had told the police the defendant’s
address and that he had told police the defendant “hangs out” at Jo Johnson. Detective
Injaychock told the defendant that the witnesses from the public defender’s office were
“definitely going to show up for court.” The defendant stated that they had not seen him
shooting, and Detective Injaychock responded, “But Man-man did.” He then referred to the
gun and to some “dope” recovered from the apartment at which the defendant was arrested,
and he told the defendant that there were other witnesses to the shooting and that “the old
intimidating witnesses stuff doesn’t fly anymore” because witnesses could get moved out of
the housing project and into a house. He stated that police were in possession of the
defendant’s text messages. The defendant then denied that there was $8,000 at the apartment
and stated it was $1,900.

On cross-examination, Detective Injaychock testified that he was not aware that the
gun had been tested for fingerprints by Detective Anderson of the gang unit. Detective
Injaychock identified a report from the Nashville police indicating that no prints were found
on the weapon, and he confirmed that the defendant was not arrested at his home. He stated

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that he had not been successful in the past in finding DNA on weapons. He acknowledged
that he made statements in the interview that were not true, including that the police had text
messages from the defendant. Detective Injaychock testified that he was aware of another
man who had the nickname “Yellow Boy.” He acknowledged that Mr. Fizer originally
denied knowing who shot him. He acknowledged that Mr. Fizer may have been on pain
medication at the time of the identification but stated he was coherent. He stated the second
suspect was never found, although witnesses at the scene testified there was a second man.
Detective Injaychock testified that Ms. Dykes could not make an identification. He further
testified that Ms. Searcy also could not make an identification and that she provided no
physical description of the shooter. He confirmed that witnesses testified that there were at
least fifteen shots fired and stated that he would not dispute that the weapon held ten rounds
and nine were still in the magazine on the day it was recovered. On redirect, he testified that
Jo Johnson was not far by car from the location of the shooting.

II. Analysis

A. Sufficiency of the Evidence

On appeal, the defendant maintains that the evidence was insufficient to support the
verdicts, essentially because he claims the issue of identity was never proven beyond a
reasonable doubt. In support of his argument, the defendant points to the testimony that Ms.
Searcy was unable to make an identification at the time of the crime, and he claims that
nothing connected him to the gun found at his girlfriend’s house. He argues that any
testimony regarding Mr. Fizer’s identification should not have been admitted.

A conviction must be set aside when the evidence is insufficient to support the finding
of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e). An appellate court reviewing
the sufficiency of the evidence does not ask itself whether it believes guilt was established
beyond a reasonable doubt, but instead evaluates whether any rational trier of fact could have
concluded that the elements of the crime were proven beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 318-19 (1979). The appellate court may not reweigh or reevaluate
the evidence or substitute its inferences from the circumstantial evidence for those drawn by
the trier of fact. State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004). The State is entitled
to the strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978) superseded in part by statute on other grounds as stated in State v. Blanton, 926
S.W.2d 953, 958 (Tenn. Crim. App. 1996). “A guilty verdict by the jury, approved by the
trial court, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Once

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the defendant has been convicted, the presumption of innocence is lost and replaced by a
presumption of guilt, and the defendant bears the burden of showing that the evidence is
insufficient to support the verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). In
weighing the sufficiency of the evidence, direct and circumstantial evidence are treated the
same. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011); see Reid, 91 S.W.3d at 277.

The defendant does not argue that there was insufficient proof of the statutory
elements of attempted second degree murder or aggravated assault; instead, he challenges
the evidence supporting the identity of the shooter. The evidence at trial included Ms.
Searcy’s eyewitness identification of the defendant as the shooter. Furthermore, although
Detective Injaychock testified that Ms. Searcy was not able to make an identification at the
time she was shot, Ms. Searcy denied being unable to make an identification at the time and
offered testimony explaining her reluctance to identify the defendant from the photographic
array. In addition to this direct evidence, the State presented circumstantial evidence tending
to connect the defendant with the crime. At the house where the defendant was arrested, the
police located the weapon which had fired the cartridges discovered near the crime scene.
The weapon was in the same dresser as approximately $1,900 in cash, which the defendant
did not deny was his; the defendant was able to correct police regarding the amount of this
cash. The person who lived at that address denied ownership of the gun and the money.
Identity is a question of fact which the jury must determine. State v. Vaughn, 29 S.W.3d 33,
40 (Tenn. Crim. App. 1998). The defendant took the opportunity to call Ms. Searcy’s
identification into question and argued that there was no fingerprint or DNA evidence to
connect the defendant to the gun. Nevertheless, the jury could have inferred from the
circumstances that the defendant had access to the dresser where the gun was found and that
the gun used in the shooting belonged to him.

Taken in the light most favorable to the prosecution, the evidence at trial was such that
a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This
is true even when we omit the evidence from Mr. Fizer tending to connect the defendant to
the crime. Accordingly, this issue is without merit.

B. Confrontation Clause Violation

The defendant asserts that the testimony regarding Mr. Fizer’s identification of him
was admitted in violation of the rule in Crawford v. Washington, 541 U.S. 36 (2004). The
Sixth Amendment to the United States Constitution mandates that a criminal defendant be
afforded the opportunity “to be confronted with the witnesses against him.” Crawford
clarified that under the Confrontation Clause, testimonial statements can only be admitted
where the declarant is unavailable and where the defendant has had a prior opportunity for
cross-examination. Crawford, 541 U.S. at 68. Testimonial evidence includes, at a

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minimum, police interrogations. Id. The declarant in this case was unavailable because he
“persist[ed] in refusing to testify concerning the subject matter of the declarant’s statement
despite an order of the court to do so.” Tenn. R. Evid. 804(a)(2).

The State concedes that the statement was testimonial, that Mr. Fizer was unavailable,
that there was no opportunity for cross-examination, and that the identification was therefore
admitted in error. The State, however, claims this error was harmless. A violation of the
mandates of Crawford is a non-structural constitutional error. State v. Gomez, 163 S.W.3d
632, 648 (Tenn. 2005) overruled on other grounds by State v. Gomez, 239 S.W.3d 733
(Tenn. 2007). A non-structural constitutional error must be reversed unless the State can
demonstrate that the error was harmless beyond a reasonable doubt. State v. Rodriguez, 254
S.W.3d 361, 371 (Tenn. 2008). “An assessment of harmlessness cannot include
consideration of whether the witness’ testimony would have been unchanged, or the jury’s
assessment unaltered, had there been confrontation; such an inquiry would obviously involve
pure speculation, and harmlessness must therefore be determined on the basis of the
remaining evidence.” State v. Parker, 350 S.W.3d 883, 902 (Tenn. 2011) (quoting Coy v.
Iowa, 487 U.S. 1012, 1021-22 (1988)).

In Parker, testimony regarding the victim’s description of the attacker and her
statement that a hat belonged to him was improperly admitted along with properly admitted
evidence that the defendant’s DNA was on a hat in the victim’s bedroom; that the defendant
had been taken to the victim’s residence by a friend; that the victim had stated the attacker
was someone her son knew and that her son knew the defendant; and that her attacker had
tried to rape her and had put her to the ground. Id. at 902-03. The Tennessee Supreme Court
concluded that admitting testimony regarding statements made by the unavailable victim was
harmless because “[h]ad the jury heard only [the properly admitted] proof, …we are
convinced beyond a reasonable doubt that it would have convicted Defendant as it did.” Id.
at 903. Likewise, in State v. Gomez, the Tennessee Supreme Court found a violation of the
defendant’s right to confrontation to be harmless beyond a reasonable doubt. Gomez, 163
S.W.3d at 648. In Gomez, an accomplice’s statements regarding a conspiracy to commit
robbery were admitted in violation of the right to confrontation. The Court concluded that
the error was harmless because an eyewitness identified the defendant; fingerprint evidence
linked the defendant to ammunition found in a hotel room; the defendant’s girlfriend testified
regarding his participation in the crime; the statement did not identify the defendant; and the
trial court gave instructions limiting its use to establishing a conspiracy. Id.

Looking at the “remaining evidence” of the defendant’s convictions, Parker, 350
S.W.3d at 902, we conclude that the error was harmless beyond a reasonable doubt. Even
without Mr. Fizer’s identification of the defendant, the State was able to present an
eyewitness who testified that the defendant was the man who shot her. Furthermore, the

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weapon which matched cartridge cases recovered from the scene was found hidden at the
house where the defendant was arrested. The weapon was located in the same dresser as
money which the defendant did not deny was his and regarding the amount of which the
defendant demonstrated knowledge. While the evidence here is not as overwhelming as in
Parker and Gomez, we nevertheless conclude that the error was harmless.

C. Sentencing Errors

In his final assignment of error, the defendant contends that the trial court erred by
considering misdemeanor convictions to enhance his sentence or alternatively considering
felony convictions both to establish range and to enhance the sentence. He further objects
to the trial court’s determination that he was a professional criminal in support of its
imposition of consecutive sentences.

A defendant may appeal from the length, range, manner of service or imposition of
consecutive sentences. T.C.A. § 40-35-401(a) (2010). Tennessee Code Annotated section
40-35-210(c) mandates that the trial court impose a sentence within the appropriate range and
states that “the court shall consider, but is not bound by, the … advisory sentencing
guidelines,” which include adjusting the range according to the presence or absence of
enhancing and mitigating factors. T.C.A. § 40-35-210(c), (c)(2). Previously, appellate courts
reviewed the length of a sentence de novo upon the record with a presumption of correctness.
However, in State v. Bise, the Tennessee Supreme Court concluded that the 2005
amendments to the Sentencing Act abrogated the de novo standard of review. State v. Bise,
380 S.W.3d 682, 707 (Tenn. 2012). Accordingly, we now review a trial court’s decision
regarding the length of a sentence for an abuse of discretion, granting a presumption of
reasonableness to within-range decisions that reflect a proper application of the purposes and
principles of the Sentencing Act. Id. In fact, “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 Sentencing Act. Id. at 706. It is no longer true that an
appellate court makes a presumption of correctness which fails when the trial court applies
inappropriate enhancement or mitigating factors. Id. A sentence within the appropriate
range will be upheld so long as “there are other reasons consistent with the purposes and
principles of sentencing.” Id.

The trial court’s order reflects that the parties agreed that the defendant was a Range
II, multiple offender; the defendant’s sentence fell within that range. See T.C.A. §§ 40-35-
106, -112. The trial court found four enhancement factors. The court determined that the
defendant had a previous history of criminal behavior in addition to the prior offenses
necessary to establish the range. The defendant had five prior felony convictions, only two
of which were necessary to establish the range; in addition, the trial court found that the

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defendant had twenty-two misdemeanor violations. The trial court also found that the
defendant had a previous history of unwillingness to comply with release into the community,
in that he had not complied with his prior probation. The trial court applied the use of a
firearm as an enhancement factor for the two attempted second degree murder convictions.
Finally, the trial court found that the defendant committed the offenses while on release into
the community. The trial court found no mitigating factors.

The trial court sentenced the defendant within the appropriate range and did not
“wholly depart[]” from the Sentencing Act or the purposes and principles of sentencing.
Bise, 380 S.W.3d at 706. Furthermore, while the defendant objects to the enhancement of
his sentence based on his prior record, misdemeanors may be used to enhance a sentence, and
the defendant cites no contrary authority. State v. Ramsey, 903 S.W.2d 709, 714 (Tenn.
Crim. App. 1995); see also State v. Avery, No. M2008-01809-CCA-R3-CD, 2009 WL
4724430, at *15 (Tenn. Crim. App. Dec. 10, 2009). The defendant had three felony
convictions above those necessary to establish the range, and the trial court found other
enhancement factors applied. We conclude the trial court did not abuse its discretion with
regard to the length of the defendant’s sentences.

The trial court also ordered the sentences to be served consecutively. Under
Tennessee Code Annotated section 40-35-115, a trial court may impose consecutive
sentences if it finds it finds by a preponderance of the evidence that:

(1) The defendant is a professional criminal who has knowingly
devoted the defendant’s life to criminal acts as a major source of
livelihood;

(2) The defendant is an offender whose record of criminal activity
is extensive;

. . . [or]

(6) The defendant is sentenced for an offense committed while on
probation.

T.C.A. § 40-35-115(b). Consecutive sentences must also comport with the general
sentencing principles that the overall sentence imposed “should be no greater than that
deserved for the offense committed” and that it “should be the least severe measure necessary
to achieve the purposes for which the sentence is imposed.” T.C.A. § 40-35-103(2) & (4).
Bise did not address whether the abuse of discretion standard of review is to be applied to a
court’s decision to impose consecutive sentences. However, prior to Bise, this Court has

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written that the imposition of consecutive sentences, absent statutorily mandated consecutive
sentences, “is a matter addressed to the sound discretion of the trial court.” State v. Hayes,
337 S.W.3d 235, 266 (Tenn. Crim. App. 2010). The burden of showing error is on the
appealing party. T.C.A. § 40-35-401, Sentencing Comm’n cmt.

In imposing consecutive sentences, the trial court found three statutory factors: that
the defendant was a professional criminal who had devoted his life to criminal acts as a major
source of his livelihood; that the defendant’s record of criminal activity was extensive; and
that the offense was committed while the defendant was on probation. The defendant
excepts to the trial court’s determination that he was a professional criminal. The trial court
based this determination on the defendant’s drug-related convictions, on his representation
that he had never been employed, and on his own statement that he quit high school and
began selling drugs to make money. The State also introduced testimony at trial that the
large sum of money recovered from the dresser was in denominations commonly used in the
drug trade. The record supports the trial court’s finding regarding the defendant’s status as
a professional criminal. Moreover, the trial court’s other findings are sufficient to support
the sentence imposed. A single factor will support consecutive sentencing. State v. Black,
924 S.W.2d 912, 917 (Tenn. Crim. App. 1995); T.C.A. § 40-35-115. For instance, an
extensive criminal history alone justifies the imposition of consecutive sentences. State v.
Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997). The defendant had five prior felony
and twenty-two prior misdemeanor convictions. We conclude that the trial court did not
abuse its discretion in imposing consecutive sentences.

CONCLUSION

We conclude that the evidence was sufficient to support the defendant’s convictions,
that the violation of the defendant’s right to confront witnesses against him was harmless,
and that the court did not err in sentencing the defendant. Accordingly, we affirm the
judgments of the trial court.

_________________________________
JOHN EVERETT WILLIAMS, JUDGE

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