State of Tennessee v. Valentino L. Dyer

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 30, 2011

STATE OF TENNESSEE v. VALENTINO L. DYER

Direct Appeal from the Circuit Court for Rhea County
No. 17043 J. Curtis Smith, Judge

No. E2010-02578-CCA-R3-CD - Filed October 6, 2011

The defendant, Valentino L. Dyer, was convicted by a Rhea County jury of especially
aggravated burglary, especially aggravated robbery, reckless endangerment, and aggravated
assault. The trial court modified the conviction for especially aggravated burglary to
aggravated burglary, merged the convictions for aggravated assault and reckless
endangerment into the especially aggravated robbery conviction, and sentenced the defendant
as a Range II, multiple offender to concurrent terms of eight years at thirty-five percent for
the aggravated burglary conviction and thirty-two years at 100 percent for the especially
aggravated robbery conviction, with the sentences to be served consecutively to the
defendant’s sentences in another case. The defendant raises the following issues on appeal:
(1) whether the indictment was defective for failing to state sufficient facts; (2) whether he
adequately waived his right to testify in his own defense; (3) whether the trial court erred by
disallowing evidence of the victims’ alleged activity as drug dealers to show their reputation
for dishonesty; (4) whether the evidence was sufficient to sustain the convictions; and (5)
whether the trial court properly sentenced him as a Range II offender and whether the
sentences were excessive. Following our review, we affirm the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

Larry G. Roddy (on appeal) and J. Shannon Garrison (at trial), Dayton , Tennessee, for the
appellant, Valentino L. Dyer.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; James Michael Taylor, District Attorney General; and Will Dunn, Assistant District
Attorney General, for the appellee, State of Tennessee.
 OPINION

FACTS

This case arises out of the defendant’s participation with two accomplices, Timothy
Swafford and Brian Shadden, in the April 27, 2008 break-in of the Rhea County home shared
by Jarvis Copeland, his girlfriend, Amanda Roberts, and Roberts’ ten-year-old son.
Copeland was seriously injured in the incident, sustaining cuts to his hands from a machete
swung by the defendant and severe head injuries from repeated blows from a baseball bat
swung by Shadden. The men stole Copeland’s wallet and car keys and broke into his vehicle
parked outside before fleeing from the scene. They were jointly indicted for especially
aggravated burglary, especially aggravated robbery, attempted first degree murder, and
aggravated assault. Swafford and Shadden subsequently negotiated plea bargains with the
State, and each was called as a witness for the defense at the defendant’s July 28-30, 2009
trial.

State’s Proof

The victim, Jarvis Copeland, testified that on April 27, 2008, he was living in Dayton
with his then-girlfriend, Amanda Roberts, and her young son and was in the process of
starting a pressure-washing business with funds he had received from an insurance settlement
and from cashing out a 401(k). That night, he returned home late and fell asleep in his
clothes to be awakened sometime between 2:00 and 3:00 a.m. by the sound of loud knocking
and a voice shouting “Police!” or something similar. When he heard the sound of glass
breaking, he realized that someone had broken into the home and began running toward the
living room, where he encountered the defendant, who was armed with a machete. The
victim made a positive courtroom identification of the defendant and said that he was easily
able to identify all three of the intruders who broke into his home, despite the fact that they
wore stocking caps on their heads and bandanas around their necks, as Tim Swafford, Brian
Shadden, and the defendant. According to the victim, the defendant and Swafford had come
to the house a day or two before the burglary to borrow a cell phone charger from Roberts.

The victim testified that the defendant swung the machete at him and that he caught
its blade with his hand. The defendant swung the machete at him a second time, and he again
caught the blade and hung on with both hands. The defendant, however, was able to pull the
machete from the victim’s grasp. At that point, the victim fled to the kitchen, where he
tripped over a mop bucket and fell onto the broken glass on the floor. As he was attempting
to get back up, he was pulled by the legs and repeatedly struck in the head with a baseball
bat.

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 The victim testified that Roberts kept yelling at him to stop fighting the men; he felt,
however, that he was “fighting for [his] life.” He eventually ended up in the bedroom with
Roberts and her son, where he saw Shadden holding a baseball bat and standing in the corner
while Swafford rummaged through the room yelling, “Where is it at? Where is the money?
Where is it at?” In the meantime, Roberts kept pleading with Shadden to be allowed to go
to the bathroom to get some towels to bandage the victim’s hands. Shadden, who said that
he did not know there was going to be a child in the home, eventually relented and allowed
Roberts to retrieve the towels. The victim also recalled that Swafford threatened to start
shooting if they did not reveal the location of the money. The victim did not know where the
defendant was during this time.

The victim testified that after “so many minutes” the men fled from the house, taking
his wallet and his car keys. He identified photographs of the numerous wounds he received
in the attack, including the injuries to his hands caused by the machete and injuries to his
head caused by the baseball bat. He said he underwent surgery to remove a blood clot from
his brain as well as a series of surgeries to repair nerve damage and severed tendons in his
hands.

On cross-examination, the victim said he could not recall having told the police
officers who responded to the scene that he had recognized the intruders. He denied that he
and Roberts were drug dealers, that they ran a “crack house,” or that he had cheated the
defendant in a drug deal.

Amanda Roberts testified that she had known the defendant, a distant relative, for her
whole life and had known Tim Swafford for two or three years. On the day before the
burglary, Swafford, who was accompanied by the defendant, came to her home to borrow a
cell phone charger. The next night, she was praying in bed when she heard the sound of the
door being kicked in and someone yelling, “Police, Police.” She knew, however, that it was
not the police as soon as she saw the masks and clothing that the intruders were wearing.

Roberts testified that she recognized the defendant and Swafford when they ran past
her toward the living room as she was running to her son’s bedroom. She said she heard
them fighting with the victim, ran back, and saw the defendant twice swing his machete at
the victim. The victim caught the blade in his hands each time, and the men began wrestling.
At some point during the struggle, the victim’s head was split open from a blow from a
baseball bat, which she assumed had been swung by Shadden. Roberts recalled that the men
demanded money, with Swafford at one point threatening to shoot the victim if they did not
give it to him.

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 Roberts testified that the severely injured victim eventually ended up in the bedroom
with her and her son. She said that Shadden kept them trapped in place by threatening them
with the baseball bat while Swafford and the defendant “t[ore] the house up trying to find
money.” Shadden, whom Roberts had never seen before that night, kept saying that he did
not know that there would be any children in the house and he eventually allowed Roberts
to retrieve some towels to bind the victim’s wounds.

On cross-examination, Roberts acknowledged that she initially described the
defendant and Swafford as “a black guy and a white guy,” without mentioning their names.
She said she was “a wreck” in the immediate aftermath of the ordeal and that she identified
the perpetrators by name as soon as the victim went into surgery and she was assured that her
son was all right. She denied that she or the victim were drug dealers or that they had drugs
in the home.

Dayton Police Officer Jason Woody, who was dispatched to the scene in response to
a 9-1-1 call of a screaming woman, testified that upon his arrival he heard screaming from
the house and saw a man about to enter the driver’s side of an SUV parked outside. The man
turned and fled when Officer Woody yelled, and Officer Woody pursued him on foot.
Officer Woody was forced to give up the chase, however, when he fell and injured himself
while attempting to follow the man over a wall. Officer Woody identified photographs of
the clothing the man shed during his flight, which included a black sweatshirt, a glove, and
two bandanas. He also identified items he found outside the victim’s home, which consisted
of a set of car keys on the ground beside the driver’s door of the SUV, a baseball bat at the
left rear side of the vehicle, and a bloody machete located in an area between the victim’s
home and the house next door. He said that as he started his pursuit of the fleeing man he
glimpsed the outline of one or two other individuals who were on the passenger side of the
SUV.

Officer Woody further testified that while he was still at the scene two young
fishermen approached, told him that they had seen a man run down the hill and climb a tree
by the river, and pointed out the tree. When he investigated, he discovered Brian Shadden
sitting on a branch of the tree approximately sixteen to eighteen feet off the ground. He said
that Shadden began to climb down at his command but then lost his balance and fell head
first, with a wallet containing the victim’s identification landing at the base of the tree
seconds before he hit the ground.

Dayton Police Officer Brian Malone, who arrived at the scene a few seconds after
Officer Woody, testified that victim was “a bloody mess,” had “kind of a blank look” on his
face, and was initially unable to respond to his questions. Blood was everywhere, and the
home had been ransacked.

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 Investigator Darrell Bell of the Dayton Police Department testified that his
investigation, which included an interview of Brian Shadden, led him to develop Tim
Swafford and the defendant as the two other individuals involved in the crimes. He arrested
both men the next day and took statements from the defendant on April 28 and April 29,
2008. The CDs of both statements, as well as the transcripts prepared from those statements,
were admitted as exhibits and published to the jury. In the first statement, the defendant said
that he had accompanied Swafford, Shadden, and “some white girl” to Walmart, where he
paid for some items that they wanted, including a baseball bat, a machete, some cable ties,
and a stocking cap. He said that the men promised to repay him and that he was unsure of
exactly what they bought because he was drunk at the time. Later that night, the girl dropped
him and the other two men off at Roberts’ house because Swafford and Shadden thought they
could find some drugs there.

The defendant said that Shadden was armed with the bat and the machete and that
Swafford used a crowbar to pry the door open. He denied that he had any weapon. He stated
that Shadden and Swafford entered the house and that a struggle ensued in which “someone
got hit with a bat.” The defendant claimed that he left at that point because there was “stuff
going on and [he] couldn’t take it.” He stated that he was instructed to act as a lookout and
that he might have stepped approximately one foot into the house but that he never
participated in the fight with the victim.

The following day, the defendant asked to speak to Investigator Bell again. In his
second statement, he admitted that he had been armed with a machete and had entered the
house. He said that the victim grabbed the blade of the machete and that they fought over
its control before he managed to pull it from the victim’s grasp. He denied, however, that
he swung the machete at the victim or anyone else. He stated that after Shadden started
hitting the victim with a bat and blood went everywhere, he could not take it anymore and
left the house. He insisted that no one was supposed to get hurt and said that he did not
receive anything from the burglary but had heard that Swafford got a small amount of
marijuana.

Investigator Bell identified the various items that were recovered in connection with
the case, which included the victim’s papers and billfold and a small amount of marijuana
that were recovered from the site of Shadden’s arrest and a crow bar that was found beside
the victim’s SUV at the residence.

Defendant’s Proof

Timothy Swafford testified that he, Shadden, and the defendant decided to rob the
victim and his girlfriend because they were “drunk and messed up” and were seeking “[d]ope

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and money.” Specifically, they were looking for marijuana and crack cocaine because the
victim and Roberts were known to sell drugs and their home was “a known crack house.”
He had, in fact, purchased crack cocaine and marijuana from them in the past, including only
two days before the burglary when he, the defendant, Shadden, and a fourth individual had
bought some marijuana from Roberts at the home. He said that on the night of the burglary,
the victim laid out for them approximately two ounces of crack cocaine and six or seven bags
of marijuana. In addition, they took the victim’s wallet, car keys, and approximately $2500
in cash that they found in his closet. He stated that he was armed with a crowbar, Shadden
with a bat, and the defendant with a machete and that he and Shadden each struck the victim
with their respective weapons but that they had no intent to kill him. Finally, he testified that
he saw the defendant “fighting” with the victim but never saw him strike him with the
machete.

Brian Shadden testified that he and his companions decided to commit the crimes
because the victim and Roberts were known drug dealers in the community and they believed
they would find drugs and money in their home. He testified that he did not find any money,
but he thought that Swafford had found some cash and crack cocaine.

Sentencing Hearing

The trial court found the defendant to be a Range II, multiple offender based on his
two prior felony convictions for aggravated assault. The trial court applied two enhancement
factors: that the defendant had a previous history of criminal convictions in addition to those
necessary to establish his range and that he was on probation at the time he committed the
offenses, see Tenn. Code Ann. § 40-35-114(1), (13) (2010), and found no applicable
mitigating factors. Consequently, the court sentenced the defendant to concurrent terms of
thirty-two years for the Class A felony conviction of especially aggravated robbery and eight
years for the Class C felony conviction of aggravated burglary, with the sentences to be
served consecutively to his sentences in the aggravated assault cases, for which the defendant
had been on probation at the time he committed the instant offenses.

ANALYSIS

I. Defective Indictment

The defendant contends that the indictment was fatally defective because it “simply
recited the statute relative to the charges and did not contain facts and circumstances which
would constitute the crime.” The State responds by arguing that the defendant has waived
this issue by failing to raise it in a pretrial motion and that, even if not waived, the indictment
was more than sufficient to put the defendant on notice of the charges he would be required

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to defend. We agree with the State.

Pursuant to both the United States and Tennessee Constitutions, a criminal defendant
has the right to know “the nature and cause of the accusation” against him, U.S. Const.
amend. VI, Tenn. Const. art. I, § 9; and the overriding purpose of an indictment is to provide
notice to the accused of the charges he will be called to defend. “Generally stated, an
indictment is valid if it provides sufficient information (1) to enable the accused to know the
accusation to which answer is required, (2) to furnish the court adequate basis for the entry
of a proper judgment, and (3) to protect the accused from double jeopardy.” State v. Hill,
954 S.W.2d 725, 727 (Tenn. 1997). Additionally, an indictment must state the facts of the
offense in an ordinary and concise language “in a manner so as to enable a person of
common understanding to know what is intended.” Tenn. Code Ann. § 40-13-202 (2010).

Tennessee Rule of Criminal Procedure 12(b)(2)(B) provides that a motion alleging
a defect in an indictment, presentment, or information must be raised before trial “but at any
time while the case is pending, the court may hear a claim that the indictment, presentment,
or information fails to show jurisdiction in the court or to charge an offense.”

The defendant’s challenge to the indictment is not that the trial court lacked
jurisdiction over his case or that the indictment failed to charge an offense, but rather that the
offenses were not sufficiently detailed in the indictment. We, therefore, agree with the State
that he has waived the issue by not raising it in a pretrial motion.

We further agree that, even if not waived, the defendant would not be entitled to any
relief on the basis of this issue. In addition to reciting the relative statutes for each charged
offense, the indictment listed the names of the defendants, the date on which the offenses
took place, the names of the victims, the weapons used, the items taken, and the serious
bodily injury caused to one of the victims. Counts one and two of the indictment, for
example, state in pertinent part that

Valentino L. Dyer, Timothy A. Swafford and Brian E. Shadden on
the 27th day of April, 2008 in Rhea County, Tennessee, and before the finding
of this indictment, did unlawfully and knowingly enter the habitation of Jarvis
Copeland and Amanda Roberts, without the effective consent of the said
Jarvis Copeland and Amanda Roberts, said habitation not open to the
public, with the intent to commit a felony, theft or assault, and did cause
serious bodily injury to the said Jarvis Copeland, in violation of T.C.A. 39-
14-404, . . .

[and]

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 did unlawfully and knowingly obtain control of a wallet containing personal
identification and a set of keys being the personal property of Jarvis
Copeland, without the owner[’]s consent and with the intent to deprive the
true owner thereof. Said theft of property was from the person of Jarvis
Copeland by violence and accomplished by the use of a deadly weapon, to
wit: a ball bat and a machete, as a result of which the said Jarvis Copeland
suffered serious bodily injury, in violation of T.C.A. 39-13-403[.]

The indictment, thus, was sufficiently detailed to achieve its overriding purpose of
providing notice to the defendant of the charges against him.

II. Waiver of Right to Testify

The defendant contends that he was inadequately advised of his right to testify,
asserting that the colloquy between himself and counsel failed to satisfy the requirements of
Momon v. State, 18 S.W.3d 152 (Tenn. 1999), because he was not advised on the record of
the advantages and disadvantages of testifying, informed that the jury could not draw any
negative inferences from his failure to testify, and told that no one could prevent him from
testifying. Pointing out that strict compliance with the guidelines of Momon is not required,
the State asserts that the record reveals that the defendant personally waived the right to
testify after demonstrating his awareness of his rights. We, again, agree with the State.

In Momon, our supreme court held that the right of a defendant to testify in his or her
own behalf is a fundamental constitutional right that must be personally waived by the
defendant. Id. at 161. To ensure that the defendant has personally waived that right,
“defense counsel shall request a hearing, out of the presence of the jury, to inquire of the
defendant whether the defendant has made a knowing, voluntary, and intelligent waiver of
the right to testify.” Id. at 162. No particular litany need be used; however, defense counsel
must at a minimum show “that the defendant knows and understands that”:

(1) the defendant has the right not to testify, and if the defendant does not
testify, then the jury (or court) may not draw any inferences from the
defendant’s failure to testify;

(2) the defendant has the right to testify and that if the defendant wishes to
exercise that right, no one can prevent the defendant from testifying;

(3) the defendant has consulted with his or her counsel in making the decision
whether or not to testify; that the defendant has been advised of the advantages
and disadvantages of testifying; and that the defendant has voluntarily and

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 personally waived the right to testify.

Id. at 162. These procedures are “prophylactic measures which are not themselves
constitutionally required.” Id. at 163. Therefore, the failure to follow the above guidelines
will not be enough to show that a defendant was deprived of the constitutional right to testify
“if there is evidence in the record to establish that the right was otherwise personally waived
by the defendant.” Id.

In his jury-out colloquy with his trial counsel, the defendant affirmed that counsel had
discussed with him his decision with respect to testifying, that it was counsel’s
recommendation that he not testify because the State could impeach his credibility with his
prior convictions, and that he had decided to follow counsel’s advice and not testify. He also
affirmed that he realized that the decision was his alone and that he could testify regardless
of counsel’s advice. He said, however, that he believed that “everything that need[ed] to be
known [was] already known.” Upon further questioning by the prosecutor, the defendant
reiterated that he realized that he had the right to testify in his own defense and that it was
his decision not to testify. The prosecutor then informed him that the State was withdrawing
its right to impeach him with two of his prior convictions. At that point, trial counsel told
the defendant that he still advised that he not take the stand, and the defendant, without
hesitation, assured the trial court that the prosecutor’s decision about those convictions did
not cause him to change his mind about testifying. We, thus, agree with the State that the
record shows that the defendant voluntarily and personally waived his right to testify in his
own defense.

III. Evidence of the Victim’s and Roberts’ Alleged Drug Dealing

The defendant contends that the trial court erred by not allowing him to present
evidence of the victim’s and Roberts’ alleged drug dealing activity in order to impeach their
testimony about their legitimate sources of income and to show their reputations for
dishonesty in the community. After a lengthy jury-out discussion, the court ruled that the
evidence was collateral and inadmissible. The court, however, allowed the defendant to
make a jury-out offer of proof of the testimony of the following three individuals: Greg Cox,
Brandi Hyatte, and Kellon Gillespie. Cox testified that he knew the victim and Roberts
through “drug deals,” having purchased drugs from them numerous times in the past. Based
on that experience, he did not believe the victim to be a truthful person. Hyatte testified that
the victim and Roberts had reputations in the community as drug dealers but that she had
never purchased any drugs from them. Finally, Gillespie testified that the victim and Roberts
had reputations as drug dealers and, as such, in his opinion were not truthful people.

The defendant argues that the State “opened the door” to such evidence by eliciting

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the victim’s and Roberts’ testimony about their legitimate sources of income, which made
his proposed testimony “relevant” and “vital to his defense.” He further argues that the
evidence was “admissible through numerous provisions of the rules of evidence” and that its
exclusion violated “his fundamental rights to a Fair Trial and Due Process.” We respectfully
disagree.

Rulings on the admissibility of evidence based on its relevance are entrusted to the
sound discretion of the trial court and will not be overturned absent an abuse of that
discretion. State v. Thomas, 158 S.W.3d 361, 395 (Tenn.), cert. denied, 546 U.S. 855 (2005).
“‘[A]n appellate court should find an abuse of discretion when it appears that a trial court
applied an incorrect legal standard, or reached a decision which is against logic or reasoning
that caused an injustice to the party complaining.’” Id. (quoting State v. Shuck, 953 S.W.2d
662, 669 (Tenn. 1997)).

Tennessee Rule of Evidence 609 provides that the credibility of a witness may be
attacked or supported by evidence in the form of opinion or reputation but that the evidence
may refer only to character for truthfulness or untruthfulness. Tenn. R. Evid. 609(a).
Specific instances of conduct of a witness for the purpose of attacking or supporting the
witness’s character for truthfulness may not be proved by extrinsic evidence but may, subject
to certain limiting conditions, be inquired into on cross-examination of the witness. Tenn.
R. Evid. 609(b). As stated in Tennessee Law of Evidence:

If the fact being contradicted is deemed collateral, counsel must use
cross-examination of the witness being impeached to bring out the
contradictory fact and must accept the witness’s response, even if it is a denial
that counsel could disprove. Counsel cannot prove the fact by such extrinsic
proof as the testimony of other witnesses. The collateral fact rule is designed
to save time and prevent confusing the jury and “uselessly to protract and
increase the expense of judicial investigations.”

Neil P. Cohen et al., Tennessee Law of Evidence, § 6.07[4][b] (5th ed. 2005) (quoting State
v. Leach, 148 S.W.3d 42, 56 (Tenn. 2004)).

We agree with the trial court that the testimony the defendant sought to present about
the victims’ alleged drug activity and reputation as drug dealers was collateral and
inadmissible. We conclude, therefore, that the trial court properly excluded the evidence.

IV. Sufficiency of the Evidence

The defendant contends that the trial court should have granted his motion for

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judgment of acquittal because the proof was insufficient to sustain his convictions. In
support, he asserts that the testimony of both the victim and his girlfriend, who were well-
known drug dealers and who failed to immediately identify the perpetrators to the police, was
“incredible.” The State argues that the evidence was sufficient to sustain the convictions, and
we agree.

“The standard by which the trial court determines a motion for judgment of acquittal
at the end of all the proof is, in essence, the same standard which applies on appeal in
determining the sufficiency of the evidence after a conviction.” State v. Thompson, 88
S.W.3d 611, 614-15 (Tenn. Crim. App. 2000); see also State v. Blanton, 926 S.W.2d 953,
957-58 (Tenn. Crim. App. 1996). Thus, the question for this 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 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans,
838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim.
App. 1992).

All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).

“A jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has
the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d

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913, 914 (Tenn. 1982).

To sustain the conviction for aggravated burglary, the State had to prove beyond a
reasonable doubt that the defendant entered Copeland’s and Roberts’ habitation with the
intent to commit a felony or theft. Tenn. Code Ann. § 39-14-403. To sustain the conviction
for especially aggravated robbery, the State had to show beyond a reasonable doubt that the
defendant committed an intentional or knowing theft of property from Copeland that was
accomplished with a deadly weapon and where Copeland suffered serious bodily injury.
Tenn. Code Ann. § 39-13-403.

Viewed in the light most favorable to the State, the evidence showed that the
defendant accompanied Shadden and Swafford to the store to purchase weapons and
disguises and then went with them to the home of Copeland and Roberts with the intention
to rob them. There, the men broke into the home, demanded money, repeatedly struck the
victim with a machete, a ball bat, and a crowbar, causing him to suffer serious, life-
threatening injuries, ransacked the home, took the victim’s wallet and car keys, and then fled
from the scene. This was more than sufficient proof by which a jury could find the defendant
guilty of the offenses beyond a reasonable doubt. We conclude, therefore, that the evidence
was sufficient to sustain the defendant’s convictions for aggravated burglary and especially
aggravated robbery.

V. Sentencing

Lastly, the defendant challenges his classification as a Range II, multiple offender and
the length of the sentences imposed by the trial court. Specifically, he argues that the trial
court should not have sentenced him as a Range II offender because the State filed a
defective notice to seek enhanced punishment, in that it erroneously listed one of his two
qualifying felonies as an aggravated robbery instead of an aggravated assault. He also argues
that the State could not have relied on those two aggravated assault convictions, regardless
of notice, because they occurred on the same date and the State failed to show that either one
involved bodily injury or threatened bodily injury. He makes no specific argument against
the trial court’s application of enhancement factors or the length of his sentences within the
range.

When an accused challenges the length and manner of service of a sentence, it is the
duty of this court to conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code
Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the
record that the trial court considered the sentencing principles and all relevant facts and
circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does

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not apply to the legal conclusions reached by the trial court in sentencing the accused or to
the determinations made by the trial court which are predicated upon uncontroverted facts.
State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d
922, 929 (Tenn .Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim.
App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

In conducting a de novo review of a sentence, this court must consider (a) any
evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the
principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e)
the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g)
any statistical information provided by the administrative office of the courts as to Tennessee
sentencing practices for similar offenses, (h) any statements made by the accused in his own
behalf, and (i) the accused’s potential or lack of potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-103, -210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App.
2001). The party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Cmts.; Ashby, 823 S.W.2d at 169.

In imposing a specific sentence within a range, a trial court “shall consider, but is not
bound by” certain advisory sentencing guidelines, including that the “minimum sentence
within the range of punishment is the sentence that should be imposed” and that “[t]he
sentence length within the range should be adjusted, as appropriate, by the presence or
absence of mitigating and enhancement factors[.]” Tenn. Code Ann. § 40-35-210(c)(1), (2).
The weighing of the various mitigating and enhancement factors is “left to the trial court’s
sound discretion.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008).

The defendant first contends that the State’s notice of intent to seek Range II
classification was defective because one of the qualifying felonies was erroneously listed as
an aggravated robbery rather than an aggravated assault. We agree with the State, however,
that the defendant not only waived the issue by not raising it prior to or during the sentencing
hearing, see Tenn. R. App. P. 36(a), but also is unable to show that he was prejudiced as a
result of the error. During his discussion with the prosecutor at trial about his prior
impeaching convictions, the defendant asserted that he had pled guilty to two counts of
aggravated assault rather than one count of aggravated assault and one count of aggravated
robbery, as the prosecutor believed. The prosecutor conceded that he might have been
mistaken and, while someone was being sent to retrieve copies of the judgments, announced
that he was withdrawing his right to impeach the defendant’s testimony with those two
convictions. He added, however, that he was not withdrawing his notice to seek Range II
sentencing based on those convictions. The defendant offered no objection to the proposed
Range II classification, either at that time or at his later sentencing hearing.

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 Copies of the judgments, which were introduced at the sentencing hearing, reveal that
the defendant was indicted for two counts of aggravated robbery and pled guilty to two
counts of aggravated assault. Although he made no argument on this issue at sentencing, the
defendant now contends that the two convictions should have been counted as a single
conviction for the purposes of determining his range classification because the offenses
occurred on the same date and the State failed to prove that they were not based on the
subsection of the aggravated assault statute that makes it a crime for a parent or custodian to
intentionally or knowingly fail or refuse to protect a child or adult from an aggravated assault
or aggravated child abuse. See Tenn. Code Ann. § 39-13-102(b) (2010). We conclude,
however, that even if not waived, the defendant would not be entitled to relief on the basis
of this issue. First, he was indicted for especially aggravated robbery, not some kind of child
abuse. Moreover, we disagree with his contention that the statutory elements of subsection
(b) of the aggravated assault statute do not “include serious bodily injury, bodily injury,
threatened serious bodily injury or threatened bodily injury to the victim or victims.” See
Tenn. Code Ann. § 40-35-106(b)(4) (“Except for convictions for which the statutory
elements include serious bodily injury, bodily injury, threatened serious bodily injury, or
threatened bodily injury to the victim or victims, . . . , convictions for multiple felonies
committed within the same twenty-four-hour period constitute one (1) conviction for the
purpose of determining prior convictions.”). We, therefore, affirm the sentences imposed by
the trial court.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.

_________________________________
ALAN E. GLENN, JUDGE

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