State of Tennessee v. Robert Nelson Buford, III

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
April 18, 2012 Session

STATE OF TENNESSEE v. ROBERT NELSON BUFORD, III

Direct Appeal from the Criminal Court for Davidson County
No. 2008-B-1355 J. Randall Wyatt, Judge

No. M2011-00323-CCA-R3-CD - Filed January 31, 2013

A Davidson County Criminal Court Jury convicted the appellant, Robert Nelson Buford, III,
of facilitation of first degree felony murder and facilitation of attempted especially
aggravated robbery. After a sentencing hearing, the appellant received an effective thirty-
five-year sentence. On appeal, he contends that (1) the evidence is insufficient to support the
convictions; (2) the trial court should have suppressed his statement to police because he
invoked his right to remain silent; (3) his prior bad acts were inadmissible; (4) the trial court
should have given the jury a requested instruction; and (5) his effective sentence is excessive.
Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial
court erred by admitting the appellant’s statement into evidence because the appellant
invoked his right to remain silent but that the error was harmless. Therefore, we affirm the
judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

Patrick G. Frogge, Nashville, Tennessee, for the appellant, Robert Nelson Buford, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background
 In April 2008, the Davidson County Grand Jury indicted the then thirty-eight-year-old
appellant; his brother, Kevin L. Buford; his nephews, Kevin D. Buford and Deangelo
Monquez Buford, who were sixteen and seventeen years old, respectively; and Raymond
Javoss Pirtle, also seventeen years old, for the first degree felony murder and attempted
especially aggravated robbery of Billy Jack Shane Tuders. The appellant was tried separately
from his co-defendants.1

At trial, Janice Tuders, the victim’s mother, testified that the victim was thirty-three
years old when he died. On January 21, 2008, the victim worked at the Texaco Xpress Lube
on Clarksville Pike. He got off work about 5:15 p.m., received seventy dollars in cash from
his employer for his day of work, and walked to the convenience store next door to buy a
pack of cigarettes and a lottery ticket. The victim carried a wallet with him sometimes, but
Ms. Tuders did not know if he had his wallet on January 21.

Officer Eric Richardson of the Metropolitan Nashville Police Department (MNPD)
testified that on January 21, 2008, he was dispatched to an area near the Texaco Xpress Lube
and arrived at 6:13 p.m. Other officers were present and tending to the victim. Officer
Richardson found a spent shell casing, which had been ejected from a semi-automatic
weapon, on the ground.

Detective Norris Tarkington of the MNPD testified that he arrived at the crime scene
thirty to forty minutes after the initial call. Standing on Clarksville Pike and looking at the
Texaco Xpress Lube, a car wash was to the right of the Xpress Lube, and the Bordeaux
Phillips 66 convenience store was to the right of the car wash. Hunter’s grocery store was
across the street from the three businesses. Detective Tarkington found a spent nine
millimeter shell casing in front of the car wash’s office and a twenty-dollar bill and a lottery
ticket close to the car wash’s office door. A blood trail led from the car wash to the back of
the Xpress Lube, where the victim was found, and a pool of blood and a knit cap were on the
ground near the victim. From the evidence, Detective Tarkington determined that the victim
was standing close to the office door of the car wash when he was shot. The victim ran
through one of the car wash bays and behind the Xpress Lube, where he collapsed in the
parking lot.

1
At the time of the appellant’s trial, Kevin L. Buford had been convicted of facilitation of first degree
felony murder and attempted especially aggravated robbery, and Kevin D. Buford had been convicted of first
degree felony murder and attempted especially aggravated robbery. See State v. Kevin L. Buford, Sr.,No.
M2010-01618-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 342, at *1 (Nashville, May 24, 2011); State v.
Kevin D. Buford, No. M2010-02160-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 958, at *1 (Nashville,
Dec. 28, 2011).

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 On cross-examination, Detective Tarkington acknowledged that Clarksville Pike was
a busy street and said that the victim was shot about the time “rush hour” ended. The grocery
store across from the car wash had outside lights, but the lights were not bright. The Phillips
66 convenience store to the right of the car wash was known as a busy store and was well-lit.

Donna Jones testified that on January 21, 2008, she and her teenage son went to
Hunter’s grocery store on Clarksville Pike. As they were leaving, Jones heard gunshots
across the street. She looked at the car wash and saw three African-American men running
and laughing. The men ran from the car wash and got into the passenger side of a sport-
utility-type vehicle (SUV). Jones said that she did not see their faces but that “two were
probably younger men, but one was an older man.” When Jones and her son got into their
vehicle and pulled onto Clarskville Pike, the SUV was in front of them. Jones drove home
and telephoned the police. She and her son gave statements to the police, and her son may
have given the police a partial license plate number. The police showed her photograph
arrays, but she could not identify anyone.

On cross-examination, Jones acknowledged that she had testified in previous trials and
hearings related to the victim’s death. She also acknowledged that she previously testified
that she could not remember if she saw two or three men. However, she stated, “I think it
was three.”

Detective Harold Haney of the MNPD testified that shortly after the shooting, he
learned about surveillance video showing the shooting. He obtained the video, and the State
played it for the jury. The video camera, mounted at the Phillips 66 convenience store and
turned toward the self-service car wash, shows some of the car wash bays. A person walks
through one of the bays, toward the surveillance camera, and out of view on the bottom left
of the screen. About one and one-half minutes later, two individuals walk through the
adjacent, lighted car wash bay. They walk toward the surveillance camera, in the direction
of the first person, and out of view on the bottom left side of the screen. Shortly thereafter,
a fourth person walks through the same lighted bay and out of view but on the bottom right
side of the screen. Less than one minute later, the victim appears on the bottom left of the
screen, walking away from the Phillips 66 convenience store and toward the car wash bays.
Someone approaches him from behind and hits him on the head. As the victim runs toward
the car wash bays, the shooter points the gun at him. A flash of light appears as the shooter
fires the gun at the victim. The victim runs through the lighted car wash bay and out of view
at the top of the screen. The shooter and another person, who are the same two individuals
seen walking together earlier in the video, run through the adjacent bay and out of view.

Jenness Schuhmann testified that in January 2008, she worked as a crime scene
technician for the MNPD. On January 21, 2008, she went to the scene of the shooting and

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collected a knit cap, a twenty-dollar bill, a Lotto ticket, and a nine millimeter shell casing.
She also took photographs of the scene.

Lieutenant Frank Ragains of the MNPD testified that he lifted fingerprints off the
suspects’ SUV. Lorita Marsh of the MNPD testified as an expert in latent print examination
that she examined the lifted prints and compared them to the five defendants’ fingerprints.
Marsh concluded that Kevin L. Buford’s fingerprints were on the Explorer’s driver-side and
passenger-side front doors. Raymond Pirtle’s fingerprints were on the driver-side and
passenger-side rear doors. The appellant’s fingerprints were on the passenger-side front and
rear doors. On cross-examination, Marsh testified that she could not determine the ages of
fingerprints.

Twenty-year-old Raymond Pirtle testified that he was friends with Kevin D. and
Deangelo Buford, the sons of Kevin L. Buford, and had gone to school with them since the
eighth grade. Pirtle said he carried a gun for protection. About two weeks before the crimes,
Kevin D.2 asked Pirtle for the gun, and Pirtle gave it to him. Pirtle said that about noon on
January 21, 2008, Kevin D. came to Pirtle’s home and asked if Pirtle “[wanted] to ride” with
him and “do a robbery.” Pirtle told him yes and got into a four-door Ford Explorer with him.
Kevin L. was driving the SUV, and Deangelo was sitting in the front passenger seat. Kevin
D. sat behind Kevin L., and Pirtle sat behind Deangelo. Kevin L. drove to the Burger King
on Gallatin Road and told the three juveniles about a car dealership they could rob. Deangelo
had Pirtle’s gun, and the three juveniles walked to the car lot. However, they were scared
and returned to the SUV. Kevin L. was disappointed that they had not committed the robbery
and tried to get them to return to the car lot, but they refused. Kevin L. drove to an Auto
Zone and went inside to see if surveillance cameras were in the store, but he returned to the
Explorer and drove away from the store without telling the juveniles anything.

Pirtle testified that Kevin L. claimed he did not have enough money to buy gasoline
and drive them home. Pirtle was friends with someone named “Little E,” so Kevin L. drove
to Little E’s house. Little E walked outside to the Explorer, and Pirtle bought some
marijuana from him. Kevin L., Kevin D., Deangelo, and Pirtle smoked the marijuana in the
Explorer. Then Kevin L. drove downtown and picked up the appellant. Pirtle had never met
or seen the appellant before that day, and the appellant sat in the backseat of the Explorer,
between Kevin D. and Pirtle. Kevin L. drove to a liquor store on Jefferson Street and told
everyone in the Explorer, “‘I’m fixin to go in here and I am fixin to buy some liquor and I
am going to tell y’all who is cashing their check and then when they come out that is when
y’all rob them.’” Kevin L. went into the liquor store, bought some vodka, and returned to

2
Because three of the defendants share a surname, we will refer to them as “Kevin L.,” “Kevin D.,”
and Deangelo for clarity.

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the Explorer. He told them to rob an African-American man, but they did not want to rob
the man because too many people were outside the store. Kevin L. came up with a plan for
the appellant to rob Little E. He drove to the Buena Vista Market and told the juveniles to
telephone Little E and have Little E meet them there. The appellant got Pirtle’s gun from
Deangelo, got out of the Explorer, and waited for Little E to arrive. When Little E arrived
at the market and approached the Explorer, the appellant pretended not to know anyone in
the Explorer, walked up to Little E, pointed the gun at him, and demanded money. Little E
threw his money onto the ground. Pirtle did not know whether the appellant picked up the
money. However, after the robbery, he saw the appellant run through a field. A short time
later, Kevin L. picked up the appellant. The appellant still had Pirtle’s gun.

Pirtle testified that Kevin L. told everyone in the Explorer, “‘Y’all got 15 minutes to
do a robbery, because I have got to pick up my wife from work.’” He pulled into one of the
bays at the Xpress car wash on Clarksville Pike and saw the victim, who had walked through
the car wash. Pirtle said that the victim was counting money and that Kevin L. told them,
“‘That is who y’all need to rob. He got some money right there.’” The appellant and Kevin
D. got out of the Explorer, and Kevin L. drove to the grocery store across the street from the
car wash. Pirtle got out of the Explorer and walked toward the car wash to help Kevin D.
and the appellant. The victim came out of the Phillips 66 convenience store. Pirtle said that
he saw Kevin D. hit the victim with the gun, that the victim turned around and hit Kevin D.,
and that Kevin D. shot the victim. Pirtle, Kevin D., and the appellant ran through the car
wash bays and got back into the Explorer. Their seating arrangement was the same as before
except that Pirtle was sitting in the middle of the backseat and the appellant was sitting
directly behind Deangelo.

Pirtle testified that Kevin L. drove his two sons home and that they kept Pirtle’s gun.
Then Kevin L. drove Pirtle home. The next morning, the police arrived at Pirtle’s house and
arrested him. The police searched the house for the gun but did not find it. Pirtle
acknowledged that he had testified in two previous trials related to this case, that he pled
guilty to facilitation of second degree murder, and that he received a fifteen-year sentence
to be served at thirty percent. He said that prior to the shooting on July 21, 2008, he had been
arrested as a juvenile for evading arrest, bringing a weapon onto school property with intent
to go armed, and disorderly conduct. He said that he was affiliated with the Gangster
Disciples but that he had never committed a crime for the gang.

On cross-examination, Pirtle acknowledged that although Kevin L. claimed he did not
have any money, Kevin L. bought vodka from the liquor store. Pirtle acknowledged that
Kevin L. drove to the liquor store because he thought Mexicans cashed their checks there.
Pirtle acknowledged testifying at Kevin L.’s trial that Kevin L. told them to rob a woman at
the liquor store, not an African-American man. Pirtle spoke with the police on January 22,

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2008, but did not tell them his complete story until January 2010, almost two years after the
shooting. He acknowledged that he lied to the police when he spoke with them on January
22 but said he did not remember telling them that he pulled the gun out of his pants at the car
wash and gave it to Kevin D. He also acknowledged that he talked to a court-appointed
mental health evaluator and that he lied to the evaluator. He said he did not remember telling
the evaluator that he blacked out and had no memory of the crimes. Pirtle acknowledged that
Kevin D. used Pirtle’s gun to shoot the victim. However, he said, “I had something to do
with [the shooting], but I didn’t get the chance to help because by the time I got over there
everything was already happening.” He acknowledged that Kevin D. and Deangelo also
were members of the Gangster Disciples.

The defense played Pirtle’s January 22, 2008, video-recorded interview for the jury.
During the interview, Pirtle told the officers the following: The four Bufords picked him up
about 2:00 p.m. on January 21, 2008, and they rode around for hours. They stopped at the
grocery store across the street from the car wash on Clarksville Pike. Kevin D. and a “light-
skinned dude” saw the victim, got out of the Explorer, and walked to the car wash. Pirtle
also got out of the Explorer and walked across the street to the car wash. The victim walked
through one of the car wash bays and went into the Phillips 66 convenience store. The
appellant and Kevin D. waited in a “dark spot” outside. When the victim came out of the
store, Kevin D. and the light-skinned man “got him.” Kevin D. hit the victim on the head
with the gun, wrestled with the victim, and shot him. Pirtle did not hear Kevin D. tell the
victim, “Give me your wallet.” Pirtle said that he was “right there with them” and that Kevin
L. was waiting in the Explorer, which was still in the grocery store parking lot across the
street. After the shooting, Pirtle, Kevin D., and the light-skinned man ran across the street
to the Explorer. Pirtle did not know the light-skinned man’s name and had never seen him
before. Initially, Pirtle claimed that Kevin D. and Deangelo owned the gun. However, he
later admitted that the gun was his and that he bought it “off the streets.” He said that the
gun was a “nine” and that he thought it was a Smith and Wesson. He explained that about
three weeks before the shooting, he gave the gun to Kevin D. When Kevin D. and Deangelo
picked him up on the afternoon of January 21, 2008, they returned the gun to him. However,
before the shooting, Pirtle pulled the gun out of his pants and gave it back to them so they
could “go hit the lick.” He said that Kevin L. knew they were going to rob the victim but that
Kevin L. did not know Kevin D. was going to shoot the victim. Pirtle told the officers that
“we was all in it together” but that Kevin D. “took it too far.” After the shooting, everyone
was “talking bad” to Kevin D. for his having shot the victim. At the conclusion of the
interview, the police officers told Pirtle that they had talked with Kevin D., that Kevin D.
admitted shooting the victim, and that Kevin D. claimed he gave the gun to Pirtle after the
shooting. Pirtle denied knowing the location of the gun. He said that Kevin D. and Deangelo
had the gun when Kevin L. dropped them off at home.

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 On redirect examination, Pirtle acknowledged that much of what he told the officers
during the January 22 interview was consistent with his testimony at the appellant’s trial and
with testimony he gave at previous trials. He said the light-skinned man was the appellant.

Sergeant Chris Steele of the MNPD testified that on January 21, 2008, he arrived at
the crime scene about twenty minutes after the initial call. Shortly after his arrival, he
learned about a video of the shooting and obtained it from a nearby business. He also spoke
with Donna Jones, who described the suspect vehicle and gave him a license tag number.
About thirty minutes later, officers located the vehicle, which was owned by Kevin L. and
his wife, at a residence. Officers began watching the residence. When two vehicles left the
home, officers followed them to the McDonald’s on Gallatin Road. Kevin L., who was in
one of the vehicles, agreed to go with the police to the police department. Sergeant Steele
interviewed Kevin L. He also interviewed Kevin D., Deangelo, and Raymond Pirtle.
Sergeant Steele interviewed Pirtle again on January 29, 2009, and showed Pirtle a photograph
array. Pirtle selected the appellant’s photograph and identified him as the light-skinned man
present at the time of the shooting. The grand jury indicted the appellant, the police arrested
him, and Sergeant Steele interviewed him on February 2, 2009.

The State played the appellant’s video-recorded interview for the jury. During the
interview, the appellant said he did not understand why he was being charged with murder
when he did not shoot the victim. He claimed that his brother, nephews, and Raymond Pirtle
picked him up from “the mission” on January 21 and that they rode around in the Explorer.
The appellant wanted Kevin L. to drop him off at the Phillips 66 convenience store. Kevin
D. told everyone in the Explorer that he needed some money and that he was going to rob
someone, but the appellant and Kevin L. told him not to commit a robbery. Kevin L. parked
across the street from the car wash on Clarkville Pike, and the appellant and Kevin D. walked
through the car wash bays to the Phillips 66 convenience store. Pirtle was behind them. The
victim came out of the convenience store as the appellant was about to go inside. The victim
walked by the appellant, the appellant heard a gunshot, and Kevin D. and Pirtle ran across
the street to the Explorer. The appellant also ran to the Explorer because he was scared and
“didn’t want to get left.” After the incident, Kevin L. dropped off the appellant at “the
mission.” The appellant said that he did not encourage Kevin D. to rob the victim, that he
did not know Kevin D. was going to rob the victim, and that he tried to stop Kevin D. when
he saw what was happening.

On cross-examination, Sergeant Steele acknowledged that he showed “photographic
line-ups” containing the appellant’s photograph to Donna Jones and her son. Ms. Jones did
not identify anyone, but her son identified Kevin D. and Raymond Pirtle. Sergeant Steele
showed the Joneses arrays containing the appellant’s photograph, but they did not identify
him. Sergeant Steele said he used “trickery” during the appellant’s interview in order to get

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the appellant to talk with him. On redirect examination, Sergeant Steele acknowledged that
both of the Joneses said they saw three people run away from the shooting.

Dr. Sandra Thomas, an assistant medical examiner for Davidson County, testified as
an expert in forensic pathology that she did not perform the victim’s autopsy but that she
reviewed his autopsy report and concurred with its results. His cause of death was a gunshot
wound to the torso, and his manner of death was homicide. The bullet entered the victim’s
back on the left side; struck his heart, spleen, and a couple of other muscular structures; and
exited his left chest. The bullet traveled back to front, left to right, and slightly downward.
The victim would have lived for a few minutes after receiving the wound. The victim had
two twenty-dollar bills, a tube of Chapstick, a pack of cigarettes, two lighters, and a
pocketknife on his person. On cross-examination, Dr. Thomas testified that the victim would
have been able to run after the shooting.

The jury convicted the appellant of facilitation of first degree felony murder, a Class
A felony, as a lesser-included offense of first degree felony murder and facilitation of
attempted especially aggravated robbery, a Class C felony, as a lesser-included offense of
especially aggravated robbery. After a sentencing hearing, the appellant received an
effective thirty-five-year sentence.

II. Analysis

A. Sufficiency of the Evidence

The appellant contends that the evidence is insufficient to support the convictions
because the evidence merely places him at the crime scene and because Raymond Pirtle’s
testimony was not sufficiently corroborated. The State argues that the evidence is sufficient.
We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate court 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); see
also Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the
evidence and all reasonable or legitimate inferences which may be drawn therefrom. State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of
witnesses and the weight and value to be afforded the evidence, as well as all factual issues
raised by the evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor will this court
substitute its inferences drawn from the circumstantial evidence for those inferences drawn

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by the jury. Id. Because a jury conviction removes the presumption of innocence with which
a defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted
defendant has the burden of demonstrating to this court that the evidence is insufficient.
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and ‘[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’”
State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting State v. Marable, 313 S.W.2d 451,
457 (Tenn. 1958)). “The standard of review ‘is the same whether the conviction is based
upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

The appellant was convicted of facilitation of first degree felony murder and
facilitation of attempted especially aggravated robbery. As charged in this case, first degree
felony murder is the “killing of another committed in the perpetration of or attempt to
perpetrate any . . . robbery.” Tenn. Code Ann. § 39-13-202(a)(2). “Especially aggravated
robbery is robbery . . . (1) [a]ccomplished with a deadly weapon; and (2) [w]here the victim
suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403(a). “Robbery is the intentional
or knowing theft of property from the person of another by violence or putting the person in
fear.” Tenn. Code Ann. § 39-13-403(a). “A person is criminally responsible for the
facilitation of a felony, if, knowing that another intends to commit a specific felony, but
without the intent required for criminal responsibility under § 39-11-402(2), the person
knowingly furnishes substantial assistance in the commission of the felony.” Tenn. Code
Ann. § 39-11-403(a). Tennessee Code Annotated section 39-11-402(2) provides, “A person
is criminally responsible for an offense committed by the conduct of another, if . . . [a]cting
with intent to promote or assist the commission of the offense, or to benefit in the proceeds
or results of the offense, the person solicits, directs, aids, or attempts to aid another person
to commit the offense.”

Taken in the light most favorable to the State, the evidence shows that the appellant
used the murder weapon to rob Little E. After the robbery, Kevin L. stopped at the Xpress
car wash on Clarkville Pike, saw the victim walking and counting money, and told everyone
in the Explorer, “‘That is who y’all need to rob.” The appellant and Kevin D. got out of the
Explorer and followed the appellant to the Phillips 66 convenience store. Kevin L. drove to
the grocery store across the street from the car wash, and Pirtle got out of the Explorer and
walked toward the car wash to help Kevin D. and the appellant. When the victim came out
of the store, Kevin D. hit him on the head and shot him. Then Kevin D., the appellant, and

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Pirtle ran back to the Explorer. While no direct evidence establishes the appellant’s guilt in
this case, the jury could infer from the evidence that he knew Kevin D. was going to rob the
victim and that he provided substantial assistance by accompanying Kevin D. to the Phillips
66 convenience store and waiting with Kevin D. for the victim to exit the store. Thus, the
evidence is sufficient to support the convictions.

Turning to the appellant’s claim that Pirtle’s testimony was not sufficiently
corroborated, the appellant is correct in that “a conviction may not be based solely upon the
uncorroborated testimony of an accomplice.” State v. Stout, 46 S.W.3d 689, 696 (Tenn.
2001), superseded by statute on other grounds as stated in State v. Odom, 137 S.W.3d 572,
580-81 (Tenn. 2004). As our supreme court has explained,

There must be some fact testified to, entirely independent of the
accomplice’s testimony, which, taken by itself, leads to the
inference, not only that a crime has been committed, but also
that the defendant is implicated in it; and this independent
corroborative testimony must also include some fact establishing
the defendant’s identity. This corroborative evidence may be
direct or entirely circumstantial, and it need not be adequate, in
and of itself, to support a conviction; it is sufficient to meet the
requirements of the rule if it fairly and legitimately tends to
connect the defendant with the commission of the crime
charged. It is not necessary that the corroboration extend to
every part of the accomplice’s evidence. The corroboration
need not be conclusive, but it is sufficient if this evidence, of
itself, tends to connect the defendant with the commission of the
offense, although the evidence is slight and entitled, when
standing alone, to but little consideration.

State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994) (quoting State v. Gaylor, 862 S.W.2d
546, 552 (Tenn. Crim. App. 1992)) (brackets omitted), superseded by statute on other
grounds as stated in Odom, 137 S.W.3d at 580-81. But, “[w]hether sufficient corroboration
exists is a determination for the jury.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001).

In the present case, Donna Jones testified that she heard a gunshot, looked across the
street, and saw three men run to the Explorer. She also testified that two of the men were
young but that one was “older,” that they were laughing, and that she saw them get into the
passenger side of the Explorer. The appellant’s fingerprints were found on the Explorer’s
passenger-side front and rear doors. In our view, Ms. Jones’ testimony and the fingerprint
evidence connected the appellant to the crimes and established his identity. Therefore,

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Pirtle’s testimony was sufficiently corroborated.

B. Right to Remain Silent

The appellant contends that the trial court erred by denying his motion to suppress his
statement to police on February 2, 2009, because Sergeant Steele questioned him after he
invoked his right to remain silent. The State contends that the trial court properly denied the
motion. We conclude that the trial court erred by denying the appellant’s motion to suppress
but that the error was harmless.

Before trial, the appellant filed a motion to suppress his statement, arguing that
Sergeant Steele continued to question him after he refused to waive his Miranda rights. At
a pretrial hearing on the motion, defense counsel argued that when Sergeant Steele asked the
appellant if he wanted to waive his right to remain silent, the appellant answered, “Nah.”
Counsel also argued that the appellant’s answer, coupled with his body language, made it
clear that he was saying no. However, Sergeant Steele continued to question the appellant
“as if that never happened.” The State argued that “the tape will speak for itself.”

The defense played the relevant portion of the appellant’s video-recorded interview
for the trial court. The video shows the appellant sitting at a table across from Sergeant
Steele and another officer. The appellant is facing toward the video camera, which is
mounted above him and the police officers, and the officers have their backs to the camera.
Sergeant Steele, reading from a waiver of rights form, asks the appellant, “You have the right
to remain silent. Do you understand that right?” The appellant nods his head, and the second
officer in the interview room says, “Yes, sir.” Sergeant Steele makes a mark on the form,
continues reading from the form by asking the appellant if he wants to waive that right and
answer questions, and looks up at the appellant. The appellant answers something to the
effect of “na-ah.” Sergeant Steele looks down, makes another mark on the form, and informs
the appellant as follows:

So before we ask, so before we continue the additional rights
you must understand anything you say can be used against you
in court. You got a right to a lawyer for advice before we ask
you questions and have that lawyer with you during questioning.
If you can’t afford a lawyer one will be provided to you free of
charge before we ask any questions. So, I’ve read the statement
of my rights or had the rights read to me and understand what
my rights are. And when I make a statement or answer
questions I do not want a lawyer at this time. I understand and
know what I am doing. No promises or threats have been made

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 to me. No pressure or coercion of any kind has been used
against me. I also understand that anytime I choose to stop
answering questions the interview will cease. Understand that?

The appellant nods his head up and down and signs the waiver of rights form.

Sergeant Steele testified for the State at the hearing and acknowledged that he had
informed suspects of their rights many times. During the appellant’s interview, Sergeant
Steele marked on the waiver of rights form that the appellant wanted to waive his right to
remain silent and answer questions. The State asked him, “Now, you just saw the video are
you willing to sit here and say that you believe that he said, ‘Nah’, Detective?” Sergeant
Steele said that he would not have continued questioning the appellant “if we had any
indication that he would have said, no, he didn’t want to speak to us.” The trial court then
asked the officer, “[W]hat did it sound like to you that he said, what did you think that he
said[?]” Sergeant Steele answered, “It has been almost three years and in watching that, I
mean, it is hard to hear and I am sure because even in my - in my supplement I put that he
agreed to speak with us during the interview.”

On cross-examination, Sergeant Steele testified that he always filled out the waiver
of rights form for a suspect. He acknowledged that he filled out the appellant’s form and that
he “pushed” it across the table for the appellant to sign. He also acknowledged that the
appellant did not read the form before the appellant signed it.

The trial court noted that the video-recording was “not as clear as it could be” and that
it wanted to view the recording again. On the morning of trial, the court ruled as follows:

The other day we had a hearing in here having to do with
[Sergeant] Steele’s interview of the defendant and even though
I think it would be a little more clear considering that interview
and everything about it, the Court is of the opinion that when the
defendant was first asked about his rights and so forth there was
some little response that wasn’t really an unequivocal sort of
statement as much as it was a na, uh, na-na, uh-huh, unh-uh,
whatever word like that.

[T]he detectives were [reading] from a pretty straightforward
waiver form that spelled out all of his rights. The right to
remain silent, the right to save his views in court and this and
this and that and the defendant was kind of nodding his head in
agreement as if he understood his right to remain silent and then

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 [Sergeant] Steele asked him with that right in mind do you wish
to waive that right and answer questions which the defendant
made some kind of a sound like I just said a nuh, na, na-na-na,
and . . . I can see how you could say that sounded like a no.

[Sergeant] Steele testified that it was not a no [and] that
he would have ceased questioning at that time if he thought it
was and under the totality of the circumstances the Court is of
the opinion that that was not a clear refusal or denial of the
defendant understanding his rights, nor was it a clear denial or
whatever rejection of him talking to the detective about it and I
think under the circumstances all of them the Court finds that he
did waive his rights.

There was a statement read to the defendant right before
he signed it. I read the statement of my rights, the rights have
been read to me and this and this and this and indicated that no
promises or threats have been made and I understand that I can
stop talking at anytime and he was asked, the defendant was, if
he understood that paragraph and he nodded yes in agreement.
He nodded yes in agreement I might say and then he signed the
waiver of rights form.

In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Nevertheless, appellate courts will review the trial court’s application of law to the facts
purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

Both the Fifth Amendment to the United States Constitution and article I, section 9
of the Tennessee Constitution provide protection against compulsory self-incrimination. To
this end, “‘once warnings have been given, . . . if the individual indicates in any manner, at
any time prior to or during questioning, that he wishes to remain silent, the interrogation must
cease. At that point, he has shown that he intends to exercise his Fifth Amendment
privilege.’” State v. Crump, 834 S.W.2d 265, 269 (Tenn. 1992) (quoting Miranda v.
Arizona, 384 U.S. 436, 473-74 (1966)).

We have carefully reviewed the video recording of the interview. Clearly, the

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appellant did not say the word “no.” However, he also did not say “yes.” Instead, he said,
“Na ah.” He also appeared to shake his head, albeit slightly, to the side. Sergeant Steele was
looking directly at the appellant. Without hesitation, Sergeant Steele marked on the form that
the appellant wanted to waive his right to remain silent and began reading the next paragraph
on the form to the appellant. The appellant never indicated that Sergeant Steele had
misunderstood him and signed the waiver of rights form. Sergeant Steele testified at the
hearing that the appellant did not give any indication that he wanted to remain silent, and the
trial court obviously found the officer credible on that point. However, this court has stated
that whether a suspect has invoked his right to counsel is an objective, not subjective,
standard. State v. Koffman, 207 S.W.3d 309, 318 (Tenn. Crim. App. 2006). We see no
reason why the standard for the right to remain silent would be any different. Based upon
our review of the video recording, we conclude that the appellant invoked his right to remain
silent. Therefore, the trial court should have granted his motion to suppress his statement.

Next, we must determine whether the trial court’s error was harmless. In conducting
harmless error analysis, our supreme court has identified three categories of errors: (1)
structural constitutional error; (2) non-structural constitutional error; and (3)
non-constitutional error. State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008); State v.
Powers, 101 S.W.3d 383, 397 (Tenn. 2003); State v. Garrison, 40 S.W.3d 426, 433-34 (Tenn.
2000); State v. Harris, 989 S.W.2d 307, 314-15 (Tenn. 1999).

Structural constitutional errors involve “defects in the trial mechanism” that
“compromise the integrity of the judicial process itself.” Rodriguez, 254 S.W.3d at 371.
Structural constitutional errors “have an impact upon ‘[t]he entire conduct of trial from
beginning to end’” and require automatic reversal. Momon v. State, 18 S.W.3d 152, 165
(Tenn. 1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 311 (1991)). The denial of the
right to counsel, denial of the right to self-representation at trial, denial of the right to a jury
trial, and racial discrimination in grand jury selection are examples of structural
constitutional errors. Rodriguez, 254 S.W.3d at 371; Momon, 18 S.W.3d at 165-66.

Constitutional errors that are not structural do not require automatic reversal.
“However, the burden on the State to demonstrate that a non-structural constitutional error
is harmless remains quite stringent. The existence of a non-structural constitutional error
requires reversal unless the State demonstrates beyond a reasonable doubt that the error is
harmless.” Rodriguez, 254 S.W.3d at 371. The test to be applied is “‘whether it appears
“beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.”’” Id. (quoting State v. Allen, 69 S.W.3d 181, 190 (Tenn. 2002) (quoting Neder
v. United States, 527 U.S. 1, 15 (1999))). For non-constitutional errors, a defendant
challenging a conviction has the burden of demonstrating that the error “more probably than
not affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App.

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P. 36(b); Rodriguez, 254 S.W.3d at 371-72. Appellate courts consider the entire record in
evaluating whether the error affected the outcome of the trial. Rodriguez, 254 S.W.3d at
371-72.

The trial court’s admitting the appellant’s statement, taken in violation of his right to
remain silent, did not impact the trial from beginning to end and is a non-structural
constitutional error. Therefore, the State has the burden of proving beyond a reasonable
doubt that the error did not contribute to the appellant’s conviction. In our view, the State
has met its burden. Pirtle testified that the appellant robbed Little E at the Buena Vista
Market. Kevin L. wanted everyone to commit another robbery, drove to the Xpress car wash,
and saw the victim counting money. Kevin L. told everyone in the Explorer that the victim
was the person they needed to rob. Pirtle said that the appellant and Kevin D. got out of the
Explorer, walked through the car wash bay, and walked to the Phillips 66 convenience store.
When the victim came out of the store, Kevin D. shot him and everyone ran back to the
Explorer. As stated previously, Ms. Jones’ testimony and the fingerprint evidence
sufficiently corroborated Pirtle’s testimony. The jury obviously considered the evidence
carefully, concluding that the appellant did not have the intent required to convict him as
charged but that he provided “substantial assistance” to Kevin D. Given the evidence, we
conclude that the trial court’s error was harmless.

C. Prior Bad Acts

Next, the appellant contends that the trial court erred by allowing Raymond Pirtle to
testify about the appellant’s prior bad acts pursuant to Rule 404(b), Tennessee Rules of
Evidence. In addition, he contends that the trial court did not follow the procedural mandates
of the Rule by failing to address whether Pirtle’s testimony was relevant or clear and
convincing and by failing to address whether the probative value of the testimony was
outweighed by the danger of unfair prejudice. The State argues that Pirtle’s testimony was
admissible. We agree with the State.

Before trial, the State filed a motion to introduce evidence of bad acts the appellant
committed on January 21, 2008, prior to his committing the crimes in this case. Before
opening statements, the trial court held a jury-out hearing to determine the admissibility of
the evidence.

During the hearing, Pirtle’s testimony was essentially the same as his trial testimony.
Specifically, he testified that on the afternoon of January 21, 2008, he rode around with
Kevin D., Deangelo, and Kevin L. and that they planned to “hit a lick,” meaning commit a
robbery. Initially, they planned to rob a car lot across the street from Burger King. However,
Kevin D., Deangelo, and Pirtle did not want to rob the lot, so Kevin L. drove to the Auto

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Zone in order to check the business for surveillance cameras. After leaving Auto Zone, the
group bought marijuana from Little E, smoked it, and picked up the appellant at his place of
employment downtown. Kevin L. drove to a liquor store, where Mexicans were known to
cash their checks, and went inside. When he came out, he told Kevin D., Deangelo, Pirtle,
and the appellant about a person they could rob. Pirtle, Kevin D., and Deangelo were
supposed to commit the robbery, but they refused. Deangelo telephoned Little E and offered
to buy more marijuana, and Kevin L. drove to the Buena Vista Market in Pirtle’s
neighborhood so they could meet Little E. When the Explorer arrived at the market, the
appellant got out of the SUV and pretended to use a pay telephone. When Little E arrived
and walked to the Explorer, the appellant showed a gun and robbed him. Kevin L. drove
away from the market but picked up the appellant later on another street. Kevin L.
announced that they had fifteen minutes to commit a robbery because he had to pick up his
wife from work. He stopped at the car wash on Clarksville Pike, and the appellant and Kevin
D. got out of the Explorer. Kevin L. drove across the street, and Pirtle got out and walked
to the car wash.

On cross-examination, Pirtle testified that he thought they picked up the appellant
from the appellant’s place of employment because the appellant was wearing a “button-up”
shirt and a coat. He had not seen the appellant prior to January 21, 2008, and did not talk to
the appellant. Pirtle said Kevin L. made the appellant rob Little E at the Buena Vista Market.
Pirtle acknowledged that he, Kevin D., and Deangelo were members of the Gangster
Disciples and that he had previous charges for possessing a weapon at school and evading
arrest. He also acknowledged that he had been in numerous fights at school and said that he
had been suspended from school possibly thirty times.

At the conclusion of Pirtle’s testimony, defense counsel noted that the trial court had
already ruled in previous 404(b) hearings for the appellant’s co-defendants that Pirtle’s
testimony was admissible. Nevertheless, defense counsel argued that Pirtle’s story was
“ridiculous” and that “[t]his robbery of the weed dealer in [particular] is one of the more
outlandish things that I have ever heard.” The State argued, “He testified at a previous
404(b) hearing. He has testified at some of their trials . . . all about the same items and he
has been consistent all the way through. He has never been inconsistent about what
happened and we would just ask to be permitted to use the testimony.” The trial court ruled
as follows:

Here is the way that I hear him today having to do with this man
over here Mr. Robert Nelson Buford. His testimony has been
mostly consistent with regard to the people coming, the man
coming Little E or Little Edward or whatever his name was to
that phone booth and all of that business about the marijuana.

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 Mr. Robert Buford was there then and he is testifying that he
had the pistol and that he robbed him and it was attempting to
be, looking like it was, like he was independent of the other
people in the car and then they later saw him through and he
came over and met him even though they were all involved
together.

I am going to allow him to testify with regard to that
incident and let the jury give it whatever weight they think it
deserves and I will instruct the jury like I did the other time
about this his leading up to the incident that we are here about
now.

At first, the trial court ruled that Pirtle could testify only about the robbery of Little
E because any bad acts that occurred before the group picked up the appellant were
irrelevant. However, the State argued that the earlier bad acts were relevant because “the
whole point is that the robberies actually are unsuccessful until [the appellant] gets on the
scene and again those items that before he gets in are not 404(b).” The State argued, “It is
part of the State’s proof . . . the whole thing was that they were going out to rob people and
the testimony was and it will be from Mr. Pritle that that was made plain to [the appellant].”
The trial court replied, “He didn’t make it plain in here then.” Nevertheless, the trial court
was persuaded by the State’s argument and ruled that Pirtle could testify about events that
occurred before the appellant became involved. Later during the trial, defense counsel
informed the trial court that he forgot to argue on the record during the 404(b) hearing that
Pirtle’s prior bad act testimony was “highly prejudicial and not probative.” The trial court
stated, “I will note for the record that you have argued that.” The trial court also stated, “I
would have made the same decision after that.”

Tennessee Rule of Evidence 404(b) provides,

Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity with the character trait. It may, however, be
admissible for other purposes. The conditions which must be
satisfied before allowing such evidence are:

(1) The court upon request must hold a hearing outside
the jury’s presence;

(2) The court must determine that a material issue exists

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 other than conduct conforming with a character trait and must
upon request state on the record the material issue, the ruling,
and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong,
or act to be clear and convincing; and

(4) The court must exclude the evidence if its probative
value is outweighed by the danger of unfair prejudice.

See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005); State v. Parton, 694 S.W.2d
299, 302 (Tenn. 1985). A trial court’s decision regarding the admission of Rule 404(b)
evidence will be reviewed under an abuse of discretion standard; however, “the decision of
the trial court should be afforded no deference unless there has been substantial compliance
with the procedural requirements of the Rule.” State v. DuBose, 953 S.W.2d 649, 652 (Tenn.
1997).

Generally, “[o]nly in an exceptional case will another crime, wrong, or bad act be
relevant to an issue other than the accused’s character. Such exceptional cases include
identity, intent, motive, opportunity, or rebuttal of mistake or accident.” State v. Luellen, 867
S.W.2d 736, 740 (Tenn. Crim. App. 1992). In making its decision regarding the admissibility
of the testimony, the trial court must first determine if the offered testimony is relevant to
prove something other than the appellant’s character. “The jury may consider evidence
admitted under 404(b) as substantive evidence at trial.” State v. Kiser, 284 S.W.3d 227, 288
(Tenn. 2009).

Turning to the instant case, the State’s theory was that the appellant was criminally
responsible for the victim’s death because he knew Kevin D. was going to rob the victim and
participated in the attempted robbery. Meanwhile, the appellant’s defense was that he was
merely present and did not know Kevin D. was going to rob the victim. However, the fact
that the appellant used the murder weapon to rob Little E shortly before the attempted
robbery of the victim was highly relevant to the appellant’s intent in this case.

The appellant also claims that the trial court failed to find that proof of the Little E
robbery was clear and convincing. In support of his argument, the appellant notes that the
trial court said, “He didn’t make it plain in here then.” We disagree with the appellant. The
trial court noted that Pirtle had testified previously and that Pirtle’s prior testimony was
consistent with his testimony in the jury-out hearing. Therefore, we can infer that the court
found Pritle’s testimony about the robbery of Little E to be clear and convincing. In our
view, the trial court’s stating that Pirtle “didn’t make it plain in here” was not a reference to

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the veracity of Pirtle’s testimony about the robbery of Little E but was the trial court’s way
of saying that Pirtle’s testimony may not establish that the appellant knew Kevin D. was
going to rob the victim.

The appellant also contends that the trial court failed to address the probative value
of Pirtle’s testimony about the robbery of Little E. Again, we disagree. Defense counsel
specifically raised the issue later in the trial, and the trial court stated that its ruling would
have been the same. Thus, the trial court found that the probative value of the testimony was
not outweighed by the danger of unfair prejudice. We agree with the trial court. Although
Pirtle’s testimony about the robbery of Little E was highly prejudicial, given that Pirtle’s
testimony was highly relevant to the appellant’s intent in this case, we cannot say that the
probative value of the evidence was outweighed by the danger of unfair prejudice.

To the extent that the appellant is arguing that Pirtle’s testimony about prior bad acts
committed by Kevin L., Kevin D., Deangelo, and Pirtle before the appellant became involved
were inadmissible, we agree that the testimony did not violate Rule 404(b), Tennessee Rule
of Evidence, because the prior bad acts were not the appellant’s prior bad acts. Moreover,
like the trial court, we find it relevant that the juveniles repeatedly considered committing a
robbery but did not actually do so until the appellant arrived. Such evidence supported the
theory that the appellant knew and encouraged the robbery of the victim. The testimony was
prejudicial. However, we cannot say that the probative value of the testimony was
substantially outweighed by the danger of unfair prejudice. See Tenn. R. Evid. 403.
Therefore, we conclude that the trial court did not err by ruling that Pirtle’s testimony was
admissible.

D. Jury Instructions

The appellant contends that the trial court erred by refusing to give a requested jury
instruction relating to accessory after the fact. He contends that the requested instruction was
necessary because his defense was that, “if he shared any culpability, it was that of accessory
after the fact, rather than as a principal.” The State contends that the trial court properly
refused to give the instruction. We agree with the State.

The appellant requested that the trial court give the following special instruction
during the jury charge: “Being an accessory after the fact to a crime committed does not
make one criminally responsible for that crime. Accessory after the fact is a separate crime
and it has not been charged in this indictment.” The trial court refused to give the
instruction, concluding that accessory after the fact did not relate to this case.

A defendant has a “constitutional right to a correct and complete charge of the law.”

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State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly, trial courts “should give a
requested instruction if it is supported by the evidence, embodies a party’s theory, and is a
correct statement of the law.” State v. Phipps, 883 S.W.2d 138, 150 n.20 (Tenn. Crim. App.
1994). A charge resulting in prejudicial error is one that fails to fairly submit the legal issues
to the jury or misleads the jury about the applicable law. State v. Hodges, 944 S.W.2d 346,
352 (Tenn. 1997). Tenn. Code Ann. § 39-11-411(a) provides that

A person is an accessory after the fact who, after the
commission of a felony, with knowledge or reasonable ground
to believe that the offender has committed the felony, and with
the intent to hinder the arrest, trial, conviction or punishment of
the offender:

(1) Harbors or conceals the offender;

(2) Provides or aids in providing the offender with any
means of avoiding arrest, trial, conviction or punishment; or

(3) Warns the offender of impending apprehension or
discovery.

Turning to the instant case, the appellant was not charged with being an accessory
after the fact, and the proof would not have supported a conviction for that offense.
Although the appellant claims that the trial court should have given the requested instruction
because his theory of the case was that if he shared any culpability, it was that of accessory
after the fact, he did not claim at any time before or during the trial that he harbored,
concealed, provided aid, or warned the offenders after the offenses in this case, and defense
counsel did not make that argument during closing arguments. Therefore, the trial court
properly refused to give the requested instruction.

E. Sentencing

Finally, the appellant contends that his effective sentence is excessive because the trial
court sentenced him to the maximum punishments in the range and ordered consecutive
sentencing. The State argues that the trial court properly sentenced the appellant. We agree
with the State.

At the sentencing hearing, Janice Tuders, the victim’s mother, testified that “if it had
not been for [the appellant] my son may not be dead right now.” She said that the defendants
“could have flipped hamburgers for a job” and that they “didn’t have to get out and do what

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they are doing.” She said that she had raised eight children and that “they have never done
anything like this.” She said that the appellant was wrong but that she would leave his
sentences up to the trial court.

The appellant made a statement on his own behalf, saying that he wanted to apologize
to Ms. Tuders and the victim’s family for their loss of the victim. He said that he was sorry
for “the senseless act of my codefendant” and that “I also stand for those from my family
who did not stand and have no apology at all.”

The State introduced the appellant’s presentence report into evidence. According to
the report, then forty-one-year-old appellant had two-year-old triplets with his girlfriend of
seven years and a ten-year-old daughter from a previous relationship. The report shows that
the appellant obtained his GED and a certificate for commercial cleaning while in prison.
In the report, the appellant described his physical and mental health as “good” but said he
suffered intermittent knee pain from having been accidentally shot in the knee by a friend in
1991. The appellant reported that he began using alcohol when he was sixteen years old, that
he did not consume alcohol to the point of intoxication, and that he was not intoxicated when
the crimes in this case were committed. On his attorney’s advice, the appellant would not
answer questions pertaining to his drug use for the report. The report shows that the
appellant worked for Manpower from January 2004 to May 2005 and for Crutcher
Foundation from January 2007 to February 2008. The report also shows that the appellant
has been committing crimes since he was eighteen years old and has been convicted of
possession of cocaine with intent to sell, possession of a controlled substance for resale,
breach of the peace, conspiracy to conceal stolen property, concealing stolen property,
driving without a license, resisting arrest, reckless endangerment, criminal impersonation,
misdemeanor possession of anhydrous ammonia, misdemeanor theft, and vandalism. He has
nine prior convictions for criminal trespass, three convictions for possession of drug
paraphernalia, two convictions for carrying a weapon, and two convictions for public
intoxication. The appellant also has had a sentence involving probation revoked.

The trial court applied enhancement factor (1), that “[t]he defendant has a previous
history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range,” and factor (2), that the “defendant was a leader in the
commission of an offense involving two (2) or more criminal actors.” Tenn. Code Ann. §
40-35-114(1), (2). However, the trial court stated that factor (1) was the “main”
enhancement factor. The trial court found no mitigating factors applicable. For the
facilitation of first degree murder conviction, a Class A felony, the trial court sentenced him
as a Range I, standard offender to twenty-five years. See Tenn. Code Ann. §
40-35-112(a)(1). For the facilitation of especially aggravated robbery conviction, a Class C
felony, the trial court sentenced him as a Range II, multiple offender to ten years. See Tenn.

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Code Ann. § 40-35-112(b)(3). The trial court ordered that the appellant serve the sentences
consecutively based upon his extensive record of criminal activity. See Tenn. Code Ann. §
40-35-115(b)(2).

Previously, appellate review of the length, range, or manner of service of a sentence
was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).
However, our supreme court recently announced that “sentences imposed by the trial court
within the appropriate statutory range are to be reviewed under an abuse of discretion
standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn.
2012). In conducting its review, the trial court considers the following factors: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;
(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature
and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on enhancement and mitigating factors; (6) any statistical information provided
by the administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State
v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to demonstrate
the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n
Cmts.

In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because the
general assembly set the minimum length of sentence for each
felony class to reflect the relative seriousness of each criminal
offense in the felony classifications; and

(2) The sentence length within the range should be
adjusted, as appropriate, by the presence or absence of
mitigating and enhancement factors set out in §§ 40-35-113 and
40-35-114.

Tenn. Code Ann. § 40-35-210(c).

The statutory enhancement factors are advisory only. See Tenn. Code Ann. §
40-35-114; State v. Carter, 254 S.W.3d 335, 343-44 (Tenn. 2008). We note that “a trial
court’s weighing of various mitigating and enhancement factors [is] left to the trial court’s

-22-
sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select
any sentence within the applicable range so long as the length of the sentence is ‘consistent
with the purposes and principles of [the Sentencing Act].’” Id. at 343.

[A]ppellate courts are therefore left with a narrower set of
circumstances in which they might find that a trial court has
abused its discretion in setting the length of a defendant’s
sentence . . . [and are] bound by a trial court’s decision as to the
length of the sentence imposed so long as it is imposed in a
manner consistent with the purposes and principles set out in
sections -102 and -103 of the Sentencing Act.

Id. at 345-46.

The appellant contends that the trial court erred by applying enhancement factor (1)
regarding his previous history of criminal convictions or behavior because the court also used
his prior convictions to order consecutive sentencing. However, we agree with the trial court
that the appellant’s criminal history is sufficient to enhance the length of his sentences and
that it is “extensive” as required for the imposition of consecutive sentencing. The appellant
also claims that this court is “forced to guess” what weight the trial court placed on
enhancement factor (1). However, the trial court stated that factor (1) was the “main” factor
and enhanced the appellant’s sentences to the maximum in the ranges, demonstrating that the
court gave great weight to that factor. Finally, the appellant contends that the trial court
failed to state whether it thought the appellant, his brother, or both were the leaders in the
commission of the offenses. However, the trial court found both of them to be leaders,
stating, “I would think his brother moreso, but [the appellant] just right near him, were the
leaders of this if anyone was.” See State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App.
1993) (observing that more than one criminal can be a leader in the commission of the
offense). We conclude that the trial court properly sentenced the appellant.

III. Conclusion

Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgments of the trial court.

_________________________________
NORMA McGEE OGLE, JUDGE

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