State of Tennessee v. Phillip Lynn Dorse

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned On Briefs November 2, 2010

STATE OF TENNESSEE v. PHILLIP LYNN DORSE

Appeal from the Circuit Court for Dyer County
No. 08-CR-299 Lee Moore, Judge

No. W2010-00685-CCA-R3-CD - Filed June 7, 2011

Appellant, Phillip Lynn Dorse, was indicted by the Dyer County Grand Jury for two counts
of aggravated assault in connection with a neighborhood altercation during which Appellant
hit two individuals with a baseball bat. After a jury trial, Appellant was convicted of one
count of aggravated assault and one count of assault. The trial court sentenced Appellant to
an effective sentence of eight years as a Range II, multiple offender to be served
consecutively to a previously imposed sentence. On appeal, Appellant argues that the
evidence was insufficient to support his convictions and that the trial court erred in imposing
consecutive sentences. After a thorough review of the record, we affirm the judgments of
the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
J OHN E VERETT W ILLIAMS, J., Joined.

Timothy Boxx, Assistant Public Defender, for the appellant, Phillip Lynn Dorse.

Robert E. Cooper, Jr., Attorney General and Reporter, Cameron L. Hyder, Assistant Attorney
General; C. Phillip Bivens, District Attorney General, and Charles Dyer, Assistant District
Attorney General, for the appellee, State of Tennessee.
 OPINION

Factual Background

On July 19, 2008, Lori McCord was involved in a physical altercation with some
women in front of her house on Lovejoy Road in Dyer County. Appellant was living down
the street with Sherry Lee. Several people were trying to separate the women involved in the
altercation. Appellant and a few other people arrived. Already present in the McCord’s yard
were Barry McCord, Mike Hipps, and Gilberto Charcas. William Tolley arrived during the
altercation to pick up his girlfriend’s son from Mrs. McCord.

The women were separated, but a second altercation involving several of the men
began. Appellant had a baseball bat in his hand. According to several witnesses, Mr. Tolley
watched the fighting, but he did not get involved. Appellant pushed Mr. Hicks, who was
standing near Mr. Tolley. Because it was dark, Mr. Tolley thought that Mr. Hicks was not
an adult and told Appellant not to hit a kid. Appellant struck Mr. Tolley twice in the arm and
once in the head with the baseball bat. Mr. Tolley sustained severe bruising of his arm from
his shoulder to his elbow and had “knots and bruises” on the back of his head. Mr. Tolley
denied that he hit Appellant, but he did admit that he chased Appellant after Appellant hit
him with the baseball bat. Mr. Tolley was unable to catch Appellant.

When the altercation began between Appellant and Mr. Tolley, Mr. Charcas grabbed
a two-by-four board and began to try to push people away in order to break up the fight. By
all accounts, Mr. Charcas was very intoxicated. At some point after Appellant ran away from
Mr. Tolley, Mr. Tolley was informed that Cory Rose and Appellant were hitting Mr. Charcas
with baseball bats. Mr. Charcas was severely beaten. While waiting for the helicopter to
take him to the hospital, Mr. Charcas lost consciousness several times. He lost a great deal
of blood. One witness described his head as “smushed in” from the baseball bat. The
witness described three separate injuries to Mr. Charcas’s head. When Mr. Charcas testified,
he stated that he had trouble remembering the event because of the injuries he sustained that
day.

Appellant testified at trial. He stated on the day in question he was at the store with his
girlfriend and his aunt. His girlfriend received a telephone call from her children that they
had been threatened by Mr. Charcas. Appellant and his girlfriend returned home. When they
arrived at the house, his girlfriend ran down the street, and she was “jumped” by three
women. Appellant went down the street and saw Mr. Hipps hit his girlfriend. For that
reason, Appellant pushed Mr. Hipps. At that point, Mr. Tolley hit Appellant with his fist.
Appellant stated that Mr. Tolley hit him “so hard, all [he saw] was stars.” Ms. Lee was
standing near Appellant with a baseball bat, so he grabbed the bat from her and hit Mr.

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Tolley with the bat twice. Appellant threw the bat down on the ground and walked away.
When he returned to his house, he called the police to report his assault. Appellant denied
hitting Mr. Charcas. He stated that Mr. Rose was over by Mr. Charcas.

Sheila Canada is Appellant’s girlfriend. She stated that she received a telephone call
at the store informing her that Mr. Charcas was threatening her children. When she returned
home, she grabbed a baseball bat and walked down the street. When she got down the street,
Ms. Canada got into a fight with Ms. McCord. Ms. Canada threw the bat to the ground
before she began to fight. Ms. Canada got away from Ms. McCord and ran home to call the
police. After calling the police, she walked outside and saw Appellant standing near the road
in her yard. She told him to come home. She did not see Appellant involved in any
altercations.

Mr. Rose, Ms. Lee’s son, testified for the defense. Mr. Rose was sixteen at the time
of trial. He testified that the incident began when the “people down the street” began
shooting at him. He stated that Mr. Hipps and Mr. Charcas were among them. When his
mother returned, his mother and Appellant ran down the street. Appellant was carrying a
baseball bat. Mr. Cory stated that Appellant and Mr. Charcas were the first people involved
in the fight. He stated that he saw Appellant hit Mr. Charcas. Mr. Cory testified that he saw
the fight between Appellant and Mr. Tolley. Mr. Cory stated that he saw Appellant hit Mr.
Tolley with the baseball bat when Mr. Tolley did nothing to provoke Appellant. Mr. Cory
stated that he did not have a baseball bat the night of the incident. He also denied hitting Mr.
Charcas.

Misty Singletary was also a witness for the defense. The evening in question she was
with her boyfriend, Mr. Charcas, and his girlfriend. Mr. Charcas’s girlfriend said there was
an altercation at her sister’s, and they needed to go to her sister’s house. When they arrived,
there was a fight in progress. Ms. Singletary stated that Mr. Charcas was drunk the night in
question. She stated that she knew Appellant but did not see him at the altercation that night.
However, she stated that it was dark, and there were many people walking around. She also
stated that she did not see anyone get hit with a baseball bat.
Deputy Allen Fair was dispatched to Lovejoy Road. When he arrived, he discovered
a large disturbance. He found Mr. Charcas in serious condition and surrounded by a great
deal of blood. Deputy Fair stated that it appeared that the altercation took place in front of
or in the yard of the McCord house. Deputy Heath Walker arrived shortly after Deputy Fair.
Deputy Fair had interviewed several people and told Deputy Walker to locate Appellant.
Deputy Walker found Appellant at Sherry Lee’s house which was approximately 100 yards
from the McCord’s house. Deputy Walker noticed no injuries on Appellant’s body. Deputy
Walker stated that Appellant began to scream at him. Deputy Walker placed Appellant under

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arrest. At trial, Deputy Walker characterized Appellant as “very uncooperative and
combative” when he was arrested.

On August 11, 2008, the Dyer County Grand Jury indicted Appellant for two counts
of aggravated assault in connection with the assaults on Mr. Charcas and Mr. Tolley, and one
count of assault in connection with the assault on Mr. Hipps. On September 10, 2009, a jury
trial was held. Count three, the simple assault charge, was not presented to the jury. At the
conclusion of the trial, Appellant was convicted of one count of aggravated assault and one
count of assault. The trial court held a sentencing hearing on October 13, 2009. The trial
court sentenced Appellant to eight years for the aggravated assault conviction as a Range II,
multiple offender and eleven months and twenty-nine days for the assault conviction. These
sentences were ordered to be served concurrently to each other but consecutively to
previously imposed sentences.

Appellant filed a timely notice of appeal.

ANALYSIS

Sufficiency of the Evidence

On appeal, Appellant argues that the evidence was insufficient to support his
conviction because the evidence showed that he acted in self-defense. When a defendant
challenges the sufficiency of the evidence, this Court is obliged to review that claim
according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves
all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259
(Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused
is originally cloaked with a presumption of innocence, the jury verdict of guilty removes this
presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914
(Tenn.1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate
the insufficiency of the convicting evidence. Id. The relevant question the reviewing court
must answer is whether any rational trier of fact could have found the accused guilty of every
element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Harris, 839
S .W.2d at 75. In making this decision, we are to accord the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own “inferences for
those drawn by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at

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779. Further, questions concerning the credibility of the witnesses and the weight and value
to be given to evidence, as well as all factual issues raised by such evidence, are resolved by
the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn.
1990). “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)).

Appellant argues that evidence showed that he acted in self-defense. Tennessee
defines self-defense as follows:

(b)(1) Notwithstanding § 39-17-1322, a person who is not engaged in
unlawful activity and is in a place where the person has a right to be has no
duty to retreat before threatening or using force against another person when
and to the degree the person reasonably believes the force is immediately
necessary to protect against the other’s use or attempted use of unlawful force.

(2) Notwithstanding § 39-17-1322, a person who is not engaged in
unlawful activity and is in a place where the person has a right to be has no
duty to retreat before threatening or using force intended or likely to cause
death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an imminent
danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death or serious
bodily injury is real, or honestly believed to be real at the time; and

(C) The belief of danger is founded upon reasonable grounds.

T.C.A. § 39-11-611(b).

When a defendant relies upon a theory of self-defense, the State bears the burden of
proving that the defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1, 10 (Tenn.
2001). Further, it is well-settled that whether an individual acted in self-defense is a factual
determination to be made by the jury as the sole trier of fact. See State v. Goode, 956 S.W.2d
521, 527 (Tenn. Crim. App. 1997); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App.
1993). “Encompassed within that determination is whether the defendant’s belief in

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imminent danger was reasonable, whether the force used was reasonable, and whether the
defendant was without fault.” State v. Thomas Eugene Lester, No. 03C01-9702-CR-00069,
1998 WL 334394, at *2 (Tenn. Crim. App., at Knoxville, June 25, 1998), perm. app. denied,
(Tenn. Feb. 1, 1999) (citing State v. Renner, 912 S.W.2d 701, 704 (Tenn. 1995)). It is within
the prerogative of the jury to reject a claim of self-defense. See Goode, 956 S.W.2d at 527.
Upon our review of a jury’s rejection of a claim of self-defense, “in order to prevail, the
[Appellant] must show that the evidence relative to justification, such as self-defense, raises,
as a matter of law, a reasonable doubt as to his conduct being criminal.” State v. Clifton, 880
S.W.2d 737, 743 (Tenn. Crim. App. 1994).

In this case, the jury clearly rejected Appellant’s claim of self-defense by finding him
guilty of one count of aggravated assault and one count of assault. Therefore, as stated above,
Appellant must show this Court that the evidence raises a reasonable doubt as to his conduct
being criminal. Appellant has not met this burden. At trial, several witnesses testified that
Mr. Tolley was watching the altercation. When Appellant pushed Mr. Hicks, Mr. Tolley told
Appellant not to hit a kid. At this point, Appellant began hitting Mr. Tolley with the baseball
bat. Appellant alone testified that Mr. Tolley hit him before he began hitting Mr. Tolley with
the baseball bat. Several witnesses also testified that Mr. Charcas had a two by four. Some
witnesses testified that he was pushing people back with the board and others testified that
he was swinging the board to keep people back. However, none testified that Mr. Charcas
attacked Appellant. Appellant and his girlfriend both denied that Appellant was present
when Mr. Charcas was hit. Appellant agreed in his testimony that Mr. Charcas did not do
anything to him. Appellant also stated that he saw Mr. Charcas with the board, but Appellant
did not say that Mr. Charcas was anywhere near him with the board. Therefore, there is no
evidence other than Appellant’s testimony to prove that he acted in self-defense and that his
behavior did not constitute aggravated assault and assault. Furthermore, Appellant’s
testimony about self-defense was only in regard to Mr. Tolley. The jury obviously rejected
Appellant’s account of events. We have stated above that the jury is the arbiter of the
credibility of witnesses at trial. Clearly, the jury found that Appellant was not credible, and
that those who testified that Mr. Tolley was an aggressor were credible.

We conclude that the evidence was sufficient to support Appellant’s conviction.
Therefore, this issue is without merit.

Consecutive Sentencing

Appellant also argues that the trial court erred in ordering his aggravated assault and
assault sentences to be served consecutively to a previously imposed sentence. “When
reviewing sentencing issues . . . , the appellate court shall conduct a de novo review on the

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record of the issues. The review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d). “[T]he presumption of correctness ‘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. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If . . . the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails.” Id. at 345 (citing State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992)). We are to also recognize that the defendant
bears “the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at
169.

In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (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 the enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

When imposing the sentence within the appropriate sentencing range for the
defendant:

[T]he court shall consider, but is not bound by, the following advisory
sentencing 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.

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T.C.A. § 40-35-210(c) (emphasis added). However, the weight given by the trial court to the
mitigating and enhancement factors are left to the trial court’s discretion and are not a basis
for reversal by an appellate court of an imposed sentence. Carter, 254 S.W.3d at 345. “An
appellate court is . . . 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 346.

“The amended statute no longer imposes a presumptive sentence.” Carter, 254
S.W.3d at 343. As a result of the amendments to the Sentencing Act, our appellate review
of the weighing of the enhancement and mitigating factors was deleted when the factors
became advisory, as opposed to binding, upon the trial court’s sentencing decision. Id. at
344. Under current sentencing law, the trial court is nonetheless required to “consider” an
advisory sentencing guideline that is relevant to the sentencing determination, including the
application of enhancing and mitigating factors. Id. The trial court’s weighing of various
mitigating and enhancement factors is now left to the trial court’s sound discretion. Id.

To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that “the trial court appl[ied] inappropriate mitigating
and/or enhancement factors or otherwise fail[ed] to follow the Sentencing Act, the
presumption of correctness fails” and our review is de novo. Carter, 254 S.W.3d at 345.

A trial court may impose consecutive sentences upon a determination that one
or more of the criteria set forth in Tennessee Code Annotated section
40-35-115(b) exists. This section permits the trial court to impose consecutive
sentences if the court finds, among other criteria, that:

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

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

(3) The defendant is a dangerous mentally abnormal person so declared by a
competent psychiatrist who concludes as a result of an investigation prior to
sentencing that the defendant’s criminal conduct has been characterized by a

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 pattern of repetitive or compulsive behavior with heedless indifference to
consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or
no regard for human life, and no hesitation about committing a crime in which
the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances
arising from the relationship between the defendant and victim or victims, the
time span of defendant’s undetected sexual activity, the nature and scope of the
sexual acts and the extent of the residual, physical and mental damage to the
victim or victims;

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

(7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b). When imposing a consecutive sentence, a trial court should also
consider general sentencing principles, which include whether or not the length of a sentence
is justly deserved in relation to the seriousness of the offense. See State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002). The imposition of consecutive sentencing is in the discretion of the
trial court. See State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).

As stated above, this section permits the trial court to impose consecutive sentences
if the court finds, among other criteria, that “the defendant is a dangerous offender whose
behavior indicates little or no regard for human life, and no hesitation about committing a
crime in which the risk to human life is high.” T.C.A. § 40-35-115(b)(4). However, before
ordering the defendant to serve consecutive sentences on the basis that he is a dangerous
offender, the trial court must find that the resulting sentence is reasonably related to the
severity of the crimes, necessary to protect the public against further criminal conduct, and
in accord with the general sentencing principles. See Imfeld, 70 S.W.3d at 708-09; State v.
Wilkerson, 905 S.W.2d 933, 938-39 (Tenn. 1995).

The trial court stated that it was imposing consecutive sentences because of
Appellant’s “extensive prior record of criminal activity,” Appellant “appear[ed] to be a
dangerous offender,” and he had “taken no responsibility for what [Appellant had] done.”

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Appellant argues that the trial court failed to make the proper findings as required by
Wilkerson for imposing a consecutive sentence because he was a dangerous offender.

We agree with Appellant that the trial court did not make the proper findings under
Wilkerson to support the imposition of a consecutive sentence based upon the determination
that Appellant was a dangerous offender. However, the trial court also based the imposition
of the consecutive sentence on Tennessee Code Annotated section 40-35-115(b)(2), that
Appellant had an extensive record of criminal activity. In our review, the record shows that
Appellant unquestionably has an extensive criminal record. His criminal record began in
1994 when Appellant was eighteen-years-old and there are convictions almost every year,
and often multiple convictions, through May 2008. His convictions include multiple counts
of domestic assault, multiple counts of simple assault, multiple counts of possession of
marijuana, multiple counts of theft both felony and misdemeanor, multiple counts of burglary
of an automobile, aggravated burglary, disorderly conduct, driving under the influence,
resisting arrest, evading arrest, and misdemeanor escape. Appellant’s continuous criminal
history for fourteen years cannot be ignored. We conclude that Appellant’s criminal history
alone is sufficient to support the imposition of consecutive sentences pursuant to Tennessee
Code Annotated section 40-35-115(b)(2). Therefore, this issue is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court.

___________________________________
JERRY L. SMITH, JUDGE

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