State of Tennessee v. Anthony D. Forster

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
December 14, 2010 Session

STATE OF TENNESSEE v. ANTHONY D. FORSTER

Direct Appeal from the Criminal Court for Davidson County
No. 2000-B-1181 Seth Norman, Judge

No. M2002-0008-CCA-R3-CD - Filed April 12, 2011

A Davidson County grand jury indicted the Defendant, Anthony D. Forster, for four counts
of robbery related charges stemming from two incidents. The Defendant was convicted of
one count of especially aggravated robbery, acquitted on the remaining charges, and the trial
court sentenced the Defendant to twenty-two years in prison. On appeal, the Defendant
claims that:(1) the Defendant was denied his right to a speedy trial; (2) the evidence was
insufficient to support his conviction; (3) the trial court erred in failing to sever the offenses;
(4) the trial court erred in failing to compel the State to comply with Rule 16 of the
Tennessee Rules of Criminal Procedure; and (5) the trial court improperly sentenced the
Defendant. After a thorough review of the record and the applicable law, we affirm the trial
court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D AVID H. W ELLES
and J.C. M CL IN, JJ., joined.

Manuel B. Russ, Nashville, Tennessee, for the Appellant, Anthony D. Forster.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; Pamela Anderson,
Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION
I. Background
A. Procedural History

This case arises from two robberies that occurred on June 18, 1997. In December
1997, a Davidson County grand jury indicted the Defendant for one count of aggravated
robbery, two counts of aggravated assault, and one count of robbery for his alleged
participation in two Nashville robberies occurring at West Meade Cleaners and an Arby’s
restaurant. In June 2000, the State issued a superseding indictment charging the Defendant
with one count of aggravated robbery and two counts of aggravated assault, for the events
occurring at West Meade Cleaners, and one count of especially aggravated robbery for the
events occurring at the Arby’s restaurant. Following the September 2000 trial on these
charges, the jury convicted the Defendant of especially aggravated robbery of the Arby’s
restaurant and acquitted the Defendant as to the remaining charges for the events occurring
at West Meade Cleaners. The trial court sentenced the Defendant to twenty-two years for
the especially aggravated robbery conviction.

The Defendant filed a direct appeal, and a motion for appointment of counsel for the
appeal. This Court denied the Defendant’s motion for appointment of counsel based upon
his relinquishment of his right to counsel at the trial court. On direct appeal, this Court
affirmed his conviction. See State v. Anthony D. Forster, M2002-00008-CCA-R3-CD, 2003
WL 1715922, (Tenn. Crim. App., at Nashville, Apr. 1, 2003), perm. app. denied (Tenn. Oct.
13, 2003). The Defendant filed a petition for post-conviction relief, which the post-
conviction court summarily dismissed. The Defendant appealed the dismissal of his post-
conviction petition, and this Court affirmed the dismissal. See Anthony D. Forster v. State,
M2004-00452-CCA-R3-PC, 2005 WL 1521841 (Tenn. Crim. App., at Nashville, June 24,
2005), no perm. app. filed.

Having exhausted state remedies, the Defendant then filed a petition for habeas corpus
relief, alleging that he was denied his Fourteenth Amendment right to appellate counsel. The
Sixth Circuit Court of Appeals held that this Court unreasonably applied Federal law when
it inferred that the Defendant waived his Fourteenth Amendment right to appellate counsel
based upon his waiver of his Sixth Amendment right to assistance of counsel at sentencing
and remanded the case, requiring the State to reinstate the Petitioner’s direct appeal or release
him from custody. See Forster v. Steward, 360 Fed. Appx. 604, 2010 WL 21960 (C.A. 6
(Tenn)). The Defendant, now having counsel, has filed this direct appeal of his 2000
conviction. He claims that: (1) the trial court erred by denying the Defendant a speedy trial;
(2) the evidence was insufficient to support his conviction; (3) the trial court erred when it
denied the Petitioner’s motion to sever the offenses; (4) the trial court erred when it failed
to compel the State to comply with Tennessee Rule of Criminal Procedure 16; and (5) the
trial court failed to properly consider applicable mitigating factors during sentencing.

B. Facts

At trial, the following evidence was presented: Judy Dotson, a West Meade Cleaners

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employee, testified that around 7:00 a.m. on June 18, 1997, she was helping a customer when
a man came through the front door of the store and placed his arm around the customer’s
shoulder. Dotson initially thought the two were friends, but she realized otherwise when the
man took a gun “out of a little pouch.” As Dotson backed up and began to run, the armed
man ordered her to stop, but Dotson continued and fled through the side door of the building.
Once outside, Dotson ran to the front of the store where a blue car was parked, and she asked
the passenger in the car, a black man with curly hair and long sideburns, to call 911 because
the store was being robbed. The passenger reached for the door handle, but instead honked
the car horn. Dotson realized that the car was associated with the robbery, and she ran to a
bagel shop and asked them to call 911. Dotson was unable to identify the man from the
robbery in a police photographic line-up, but described him to the jury as black and “a very
big guy.”

On cross-examination, Dotson testified that the man who robbed the store wore a
white shirt, with a patch that read “Tony,” and dark pants. Dotson said that she was not
“positive” the patch said “Tony” but, because Dotson’s son-in-law is named “Tony,” she
recalled that name. Dotson acknowledged that she had not previously told anyone that the
patch on the robber’s shirt read “Tony.”

Patricia Greer, a manager at West Meade Cleaners, testified that on the morning of
June 18, 1997, she noticed a blue car pull into the store parking lot and park next to her
vehicle. Because they were short-staffed that day, Greer went to the front of the store to see
if Dotson needed help, and she saw an armed man pushing a customer to the ground and
Dotson backing away. Greer described the armed robber as a black man who was fairly tall
and “heavyset” with curly hair. She said the man was wearing blue shorts, a light blue
uniform shirt, and a black fanny pack. Greer told Dotson to run and the armed man grabbed
Greer, pushed her into the wall, and hit her with his gun. The man instructed Greer to give
him money, so she opened the register, and the man grabbed the cash drawer, took $100 in
cash and a “bad check,” and threw the cash drawer on the ground. Greer recalled that after
she heard a car horn, the man backed toward the front door and left in the blue car. As soon
as the man left, Greer slid down behind the cash register and called 911.

On cross-examination, Greer testified that she was unable to identify the Defendant
as the armed robber in a police photographic line-up on the day of the robbery. Greer said
that she told police officers that the armed robber hit her arm but that police did not
photograph the bruising. Greer did not seek medical attention for the bruising.

Teresa Obispado, testified that in June 1997 she worked at Arby’s restaurant. On the
day in question, Obispado arrived at work at 7:00 a.m. to prepare for the day. At
approximately 9:30 a.m., Obispado was coming out of the bakery area of the store when a

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co-worker told her the store was being robbed. Obispado pushed the panic button and saw
a large, tall black man, whom she later identified as the Defendant, enter from the backdoor,
which was standing open for an employee who was unloading restaurant supplies from a
truck. Obispado recalled that the Defendant came toward the front of the restaurant with the
manager, picked up fry baskets, and “acted like he was going to swing, but then he just set
them down.” The Defendant screamed at the manager that he wanted money. Obispado
noticed that there was blood on the side of the manager’s face. After the Defendant took
money from the registers, he ordered the manager to lay on the ground. Obispado testified
that, on the same day of the robbery, she identified the Defendant as the robber in a police
photographic line-up.

Betty Kidwell, an Arby’s restaurant employee, confirmed that on the day of the
robbery the back door of the restaurant was standing open because another employee was
unloading a truck and stocking the products. Kidwell heard a commotion in the office, so
she looked in and saw the store manager and another man who she described as “a big guy.”
The Defendant pointed his finger at Kidwell, indicating she was not to move, so she
continued preparing food for the restaurant. Kidwell could not see what was happening
while they were in the office, but, after they exited, the Defendant “jerked . . . up” a mop
bucket sitting on the floor as if “he was going to hit [the manager] with it.” The Defendant,
however, set the bucket back down. When the two headed for the front of the store, Kidwell
ran out the back door of the restaurant to a pay phone to call 911.

While Kidwell was outside, she noticed another man standing outside, and then she
saw the Defendant exit the store and the two men got into a dark blue car and left. Kidwell
wrote down the license number of the vehicle and provided it to police. Unlike two other
witnesses to the robbery, Kidwell was unable to identify the Defendant in a photographic
line-up. After the incident, Kidwell saw the manager and noticed a cut along her cheekbone.

Sandra Christian, an Arby’s restaurant manager, testified that, as one of the employees
unloaded a shipment of supplies that morning through the back door, she realized that part
of the shipment was missing. Christian went into the restaurant office to make a phone call
to the distributor about the missing items. She described the office phone as an older model
portable phone, “like an army field phone, a big heavy type.” In explaining how heavy the
phone was, Christian said that the phone held four “C” batteries in the receiver. Christian
was on the phone when the Defendant entered the office behind Christian. The Defendant
put his arm around Christian and ordered her to open the restaurant safe. Christian recalled
that the Defendant’s grip tightened so that she could not breathe. The Defendant grabbed the
phone from Christian’s hand, “drew back with all his weight,” and hit her with the phone,
knocking the glasses off her face and causing her to fall back onto the office desk. Christian
recalled that she was “frightened and afraid [she was] going to die.” After sustaining the

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blow, Christian steadied herself, and the Defendant said, “I’m not kidding with you.” While
trying to open the safe, Christian could feel her face bleeding. Christian recalled having
some difficulty opening the safe, and the Defendant becoming impatient with her. Once she
opened the safe, the Defendant realized there were no cash drawers. He shoved Christian
down and then grabbed her by the arms and instructed her to take him to the cash drawers
after he took rolls of change from the safe.

As the Defendant and Christian exited the office to go to the cash drawers at the front
of the store, Christian saw Obispado, but ignored her because the Defendant appeared not
to have seen Obispado. Christian opened a cash drawer, and the Defendant took the money
from the drawer. At the second cash drawer, Christian was not moving quickly enough, so
the Defendant picked up a fry basket and threw it, but it did not hit Christian. The Defendant
took the cash from the second drawer and ordered Christian to lay on the floor. Christian
estimated that the Defendant took approximately three hundred dollars from the cash drawers
and recalled that he threatened to kill Christian if she got up and exited the store.

Christian described the injuries she received as a result of the robbery, saying that she
suffered bruising on her arm from the Defendant “pulling” her around and also sustained a
laceration on her face from his hitting her with the cordless phone. This laceration, which
caused swelling for nearly a week, required a butterfly bandage, and a visible mark from the
injury remained for months. At the time of trial, three years after the injury, Christian said
she still bore a scar that went from the middle of the bridge of her nose down to her lip area.
Christian said that the scar had faded over time but said, “[I]t’s still there.” Christian
identified the Defendant in a police photographic lineup.

James Michael Chastain, a Metropolitan Nashville Police Department detective,
testified that on his way to work he heard on his police radio a description of a suspect and
vehicle, described as small and either black or blue, wanted in association with a robbery that
occurred at West Meade Cleaners. Soon after he arrived at the police station, he heard
another dispatch call indicating that a second robbery had occurred at an Arby’s restaurant,
and the vehicle description provided was similar to the vehicle described from the West
Meade Cleaners robbery. This dispatch provided a license tag number for the vehicle
associated with the Arby’s robbery.

Detective Chastain, using the license tag number, determined that the vehicle was a
blue four-door Subaru belonging to the Defendant. Based upon this information, the
detective created a photographic line-up and, shortly after the robbery, showed it to witnesses
of the Arby’s restaurant robbery. Two of the witnesses positively identified the Defendant
as the perpetrator of the robbery, and the detective sought an arrest warrant for the Defendant
based upon these identifications. The detective also showed the line-up to witnesses of the

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West Meade Cleaners robbery based upon the similarity of the descriptions of the suspects
and vehicles involved in the two robberies, but neither witness to the West Meade Cleaners
robbery could positively identify the Defendant.

Police took the Defendant into custody the following morning, and Detective Chastain
conducted a videotaped interview with the Defendant, which was shown to the jury. In the
interview, the Defendant said his girlfriend gave him $125 to pay his bond for a vandalism
charge and explained that he was in a “predicament” because he had no job and no place to
stay. Instead of paying his bond, he ultimately used all the money to purchase and use illegal
drugs. The Defendant said that he realized that he had to get the money for his bond and “the
quickest way was to go out and do what [he] did.” The Defendant said that he only
remembered committing one robbery, the one at the Arby’s restaurant, and maintained that
he did not recall robbing the West Meade Cleaners. The Defendant said he was unclear on
the location of the robbery and some of the details because he was high at the time it
occurred. He did recall, however, that, he wore a purple Gatlinburg t-shirt and blue shorts
and carried a hair brush wrapped in a navy blue towel at waist level during the robbery. The
Defendant estimated that he took approximately $200 during the robbery and that at
approximately 3:00 p.m. the day of the robberies, he knew “he’d done wrong,” so he
confessed to his sister what he had done. When the detectives asked, the Defendant initially
denied ever having been in possession of a bad check, such as the one witnesses to the West
Meade Cleaners robbery said was taken from a cash drawer, but later in the interview
admitted he found a “piece of paper with a stamp on it” that was in a white envelope. He
said that he tore it up and threw it out of the vehicle window after he fled from the robbery.

Based upon the Defendant’s recollection of throwing the white envelope out the
window, the detectives took the Defendant to the area where the Defendant believed he had
tossed the “bad check,” but they did not find it. He then directed the detectives through the
course that he drove on the day of the robberies. The Defendant instructed the detectives to
exit I-40 onto Charlotte Pike and then to turn onto Davidson Street. The Defendant pointed
at the West Meade Cleaners and said, “It’s right in here.” The detective pulled into the dry
cleaners parking lot and asked the Defendant where he had parked the previous day, and the
Defendant identified the same parking space that witnesses said the man who robbed West
Meade Cleaners had parked.

On cross-examination, Detective Chastain agreed that the Defendant was
“cooperative” during the course of the investigation and that the Defendant allowed the
Detective to search his apartment during which the detective did not find any money or
firearms. He agreed that, during the interview with the Defendant, he learned that the
Defendant had a drug addiction.

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 Tracy Woods, the Defendant’s ex-girlfriend, testified on the Defendant’s behalf.
Woods said she had broken up with the Defendant shortly before the robberies and spoke
with him over the telephone on the day of the robberies. Woods recalled that the Defendant
called her early in the morning and asked her to pick him up at a convenience store because
his car was broken down. Woods said the Defendant was standing by the pay phone alone
when she arrived. Woods spoke with the Defendant for a few minutes and then some men,
who were driving the Defendant’s car, pulled up. Woods said that she was angry because
she thought the Defendant was “stranded and then [she] saw that he wasn’t,” and so she left.

On cross-examination, Woods testified that she learned of the robberies the day after
she spoke with the Defendant and that she never came forward to tell anyone about her
interaction that day with the Defendant.

II. Analysis

On appeal, the Defendant contends that: (1) the trial court erred by denying the
Defendant a speedy trial; (2) the evidence was insufficient to support his conviction; (3) the
trial court erred when it denied the Petitioner’s motion to sever the offenses; (4) the trial
court erred when it failed to compel the State to comply with Tennessee Rule of Criminal
Procedure 16; and (5) the trial court failed to properly consider applicable mitigating factors
during sentencing.

A. Right to a Speedy Trial

The Sixth Amendment to the United States Constitution and the Tennessee
Constitution provides a defendant with the right to a speedy trial. U.S. Const. Amend. VI;
Tenn. Const. Art. I, § 9. The purpose of the right to a speedy trial is to protect defendants
from “oppressive pre-trial incarceration, anxiety and concern of the accused, and the
possibility that the [accused’s] defense will be impaired by dimming memories and loss of
exculpatory evidence.” Doggett v. United States, 505 U.S. 647, 654 (1992).

In Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court developed
a four-prong balancing test to determine whether a defendant has been deprived of the right
to a speedy trial. The four factors considered are the length of the delay, the reasons for the
delay, the defendant’s assertion of the right, and the prejudice suffered by the defendant. Id.
at 530. The delay must approach one year to trigger the Barker v. Wingo analysis, the line
of demarcation depends on the nature of the case. State v. Utley, 956 S.W.2d 489, 494
(Tenn. 1997).

In this case, the Defendant was indicted in December 1997, and the Defendant’s trial

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was in September 2000. This delay warrants a further examination of the specific
circumstances of this particular case in light of the remaining three Barker factors. We
would note, however, that this factor should not weigh heavily against the State, as a three-
year delay from indictment to trial is not excessive in light of other cases. See State v.
Simmons, 54 S.W.3d 755, 759 (Tenn. 2001); compare Doggett, 505 U.S. at 647 (six-year
delay); State v. Wood, 924 S.W.2d 342 (Tenn. 1996) (thirteen-year delay); State v. Ricky E.
Hutchings, No. M2008-00814-CCA-R3-CD, 2009 WL 1676057, at *5 (Tenn. Crim. App.,
Nashville, Feb. 10, 2009) (eight-year delay) no perm. app. filed.

The next factor to be considered is the reason or reasons for the delay, which should
be “neutral.” Barker, 407 U.S. at 531. In State v. Wood, our Supreme Court identified four
possible reasons for delay, they include:

(1) Intentional delay for tactical advantage or to harass the defendant;

(2) bureaucratic indifference or negligence;

(3) necessary delay for the fair and effective prosecution of the case; and

(4) delay agreed to or caused by the defendant.

State v. Wood, 924 S.W.2d 342 (Tenn. 1996). In this case, the Defendant does not contend
that the delay was due to the State’s intentional act to gain advantage or harass him or
bureaucratic indifference or negligence. We, likewise, do not find that the record indicates
such action by the State. The Defendant asserts in his brief that the reasons for the delay “are
difficult to assess properly from the record.” He then goes on to explain that despite the
multiple motions to withdraw by Defendant’s counsel in the record, “[H]e wished to proceed
to trial as quickly as possible, but his counsel chose for their own reasons to withdraw as his
attorney.” The State does not contend that the delay was necessary for the fair and effective
prosecution of the Defendant’s charges; rather, it asserts that the delay was caused by the
Defendant’s unwillingness to work with multiple attorneys.

Our review of the record reveals that the Defendant was represented by Stephen
Young at his January 7, 1998, arraignment. The February 13, 1998, court minutes reflect his
attorney was Jerilyn Manning. On February 26, 1998, Manning filed a motion to be relieved,
claiming that the Defendant’s “confidence” was so eroded that representation would be
inappropriate. The March 5, 1998, court minutes reflect Tony Adgent as the Defendant’s
counsel. Adgent filed a motion to be relieved on July 16, 1998, also noting client relation
difficulty and specifically asserting that he was filing the motion at the Defendant’s request.
On July 24, 1998, Terry Canady was appointed and, by March 22, 1999, also requested to

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withdraw as counsel. Canady’s motion was based upon the Defendant’s unwillingness to
work with counsel and described the Defendant as “hostile and aggressive” toward counsel.
On March 26, 1999, Canady was relieved and the court minutes reflect Tommy Longaberger
as counsel. On February 3, 2000, John Oliva filed a notice of appearance on behalf of the
Defendant. The Defendant’s trial began September 18, 2000, and, shortly thereafter, on
October 18, 2000, Oliva filed a motion to be relieved citing the deterioration of the attorney-
client relationship. The motion was granted and Nicholas Hare was appointed on November
22, 2000. The following March and August of 2001, the Defendant filed a pro se motion
requesting that Hare be removed as counsel. The trial court denied the first request. The
Defendant’s second request was followed by a motion to withdraw from Hare as well who
described the attorney-client relationship as “irretrievably damaged.” The trial court took the
motions under advisement and on October 9, 2001 granted the motion but ordered Hare to
remain on the case as “elbow counsel.”

As for the Defendant’s role in the continuances, we conclude that the Defendant’s
unwillingness to work with counsel as evidenced by five different motions to withdraw from
five different attorneys which all state difficulties in the attorney-client relationship indicates
that the Defendant was largely responsible for the continuances. The delays due to change
of counsel benefitted the Defendant in that he was able to proceed to trial with an attorney
he retained and apparently felt more comfortable with at the time of trial. Because the
Defendant caused the continuances, the reason for the delay weighs against the Defendant.

A defendant’s assertion of his speedy trial right, while not required, is “entitled to
strong evidentiary weight.” A defendant’s agreement to continuances after a speedy trial
request, however, will diminish the weight given this factor. Barker, 407 U.S. at 521; State
v. Hugh Peter Bondurant, Jr., No. M1998-00494CCA-R10CD, 1999 WL 1209514, at *6
(Tenn. Crim. App., at Nashville, Dec. 17, 1999), no perm. app. filed. The Defendant filed
a motion for a new trial date in November 1998. At the time of this motion, the trial was
already set for March 22, 1999. However, due to the Defendant’s unwillingness to work with
his counsel at that point in the case, counsel requested to be relieved and the trial court
granted the motion. Thereafter, the Defendant retained his own counsel in February 2000,
and the Defendant’s trial began in September. Because of the Defendant’s role in the delay
after he asserted his speedy trial right, his agreement negated his assertion of his right to a
speedy trial. See State v. Lewis, No. M2005-02279-CCA-R3-CD, 2006 WL 2738160, at *3
(Tenn. Crim. App., at Nashville, Sept. 26, 2006), Tenn. R. App. P. 11 application denied
(Tenn. Jan. 29, 2007).

Finally, we consider the prejudice to the Defendant caused by the delay in light of the
interests protected by the speedy trial right. Barker, 407 U.S. at 532. The U.S. Supreme
Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii)

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to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the
defense will be impaired. Id. The Defendant asserts that the delay impaired his defense
because he was incarcerated while he awaited trial, the State issued a superseding indictment
in the interim, and “the memory of [ ] witnesses faded as time went on.” Our review of the
record reveals that the prejudice in this case is minimal. Although the Defendant may have
been prejudiced, to some degree, by his pre-trial incarceration, there is no claim of
unavailability of a witness due to the delay. The transcript reveals minor lapses in memory
of the Defendant’s witness, but nothing that we can conclude was significant to the outcome
of the trial.

While the delay was sufficient to trigger a Barker inquiry, the Defendant has failed
to establish a meritorious claim for a speedy trial violation. Accordingly, the Defendant is
not entitled to relief as to this issue.

B. Sufficiency of the Evidence

The Defendant challenges the sufficiency of the evidence based pertaining to two
elements of especially aggravated robbery. The Defendant asserts that the State failed to
prove that he used a deadly weapon against Christian and that he inflicted serious bodily
injury upon Christian. The State responds that there was sufficient evidence presented to the
jury to sustain an especially aggravated robbery conviction.

When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“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 Tenn. R. App. P.
13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). A conviction may be
based entirely on circumstantial evidence where the facts are “so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant
alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). 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) (citations omitted). In determining the sufficiency of the evidence, this Court should
not re-weigh or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990). Nor may this Court substitute its inferences for those drawn by the trier
of fact from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v.

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State, 286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the
witnesses, the weight and value of 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); Liakas, 286 S.W.2d at 859. “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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace,
493 S.W.2d 474, 479 (Tenn. 1973). The Tennessee 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, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

In this case, the Defendant was convicted of especially aggravated robbery, which
requires “the intentional or knowing theft of property from the person of another by violence
or putting the person in fear” and is “accomplished with a deadly weapon; and where the
victim suffers serious bodily injury.” T.C.A. §§ 39-13-401, -403 (2009). “‘Serious bodily
injury’ means bodily injury which involves: (A) A substantial risk of death; (B) Protracted
unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E)
Protracted loss or substantial impairment of a function of a bodily member, organ or mental
faculty.” T.C.A. § 39-11-106(a)(34) (2009). “Deadly weapon,” as applicable in this case,
means “Anything that in the manner of its use or intended use is capable of causing death or
serious bodily injury.” T.C.A. § 39-11-106(a)(5)(B) (2009).

Our review of the record reveals that the evidence was sufficient for the jury to find
the Defendant guilty, beyond a reasonable doubt, of especially aggravated robbery. The
Defendant admitted during a videotaped interview that he committed a robbery at the Arby’s
restaurant during which he took approximately $200. Two witnesses of the robbery

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identified the Defendant in a photographic line up shortly after the robbery, and the
Defendant’s vehicle tag number was taken at the scene of the crime. After entering the
restaurant before store hours through an open back door, the Defendant grabbed Christian,
the store manager, from behind and ordered her to open the safe. At this time, Christian was
holding a large, heavy phone that the Defendant grabbed from her hand, “drew back with all
his weight,” and hit Christian in the face with a force that knocked off and broke her glasses
and caused her to fall back on her desk. Christian felt blood on her face, but she followed
the Defendant’s orders to open the safe fearing for her safety and her life. Finding only
change rolls in the safe, the Defendant then ordered Christian to open the cash registers in
the front of restaurant. She again complied with the Defendant’s orders and, after the
Defendant took the money from two cash registers, he told Christian to get onto the floor and
he left the restaurant. Christian sought medical treatment for the laceration caused by the
Defendant’s blow and, although the scar had faded to some degree during the subsequent
three years since she sustained the injury, at trial she still bore a visible scar from the middle
of the bridge of her nose down to her lip area.

In this appeal, the Defendant specifically challenges the element of serious bodily
injury, claiming the State failed to present evidence that, due to the Defendant’s conduct,
Christian was at risk to lose her life, that she suffered “protracted unconsciousness or
permanent loss or impairment of any bodily member, organ or mental faculty,[or that she
was] . . . permanently disfigured.” In addition to the factors the Defendant lists in his brief,
serious bodily injury may also be established by a “protracted or obvious disfigurement”
which is the theory the State proceeded on at trial. T.C.A. § 39-11-106(a)(34)(D). Three
years after the Defendant inflicted the injury, Christian still had a scar running from the
middle of the bridge of her nose down to her lip area. The jury saw this scar at trial, and we
conclude the scar was sufficient to establish the element of serious bodily injury. See State
v. Clay B. Sullivan, No. M2004-03068-CCA-R3-CD (Tenn. Crim. App., at Nashville, Mar.
10, 2006) (holding two-inch scar was sufficient for finding of protracted and obvious
disfigurement), no Tenn. R. App. P. 11 application filed ; see also State v. Shanda Alene
Wright, M2006-02343-CCA-R3-CD, 2008 WL 371258 (Tenn. Crim. App., at Nashville, Feb.
11, 2008), perm. app. denied (Tenn. Oct. 27, 2008) (holding scars sufficient to establish
serious bodily injury).

The Defendant also claims the State failed to prove that he used a deadly weapon
during the course of the robbery. Our Supreme Court has characterized deadly weapons as
either deadly per se or deadly by reason of the manner in which the item is used. Morgan v.
State, 415 S.W.2d 879, 882 (Tenn. 1967); See also T.C.A. § 39-11-106(5). Even if an item
used is not deadly per se, it may be considered “deadly” where the defendant actually used
or intended to use the item to cause death or inflict serious bodily injury. See State v.
McGouey, 229 S.W.3d 668, 674 (Tenn. 2007). In Morgan, the court held that “a hard object”

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used as “a bludgeon or club to assault” a victim is a deadly weapon within the meaning of
the robbery statute. Morgan, 415 S.W.2d at 882.

In the present case, we conclude that the jury properly determined that the heavy
cordless telephone that the Defendant used to forcibly hit Christian in the face was a deadly
weapon. Christian testified that the Defendant took the heavy phone from her hand and then
“drew back with all his weight” to hit her with such force that it knocked her glasses off her
face and physically pushed her body back onto the desk. The laceration caused by the
Defendant’s actions left a scar that still remained three years after the incident. Based upon
this evidence, we conclude that a jury could find, beyond a reasonable doubt, that the
Defendant committed especially aggravated robbery. As such, the Defendant is not entitled
to relief as to this issue.

C. Motion to Sever

The Defendant next alleges that the trial court erred when it denied his motion to sever
the offenses so that they could be tried separately. The State counters that the trial court
properly refused to sever the robbery offenses because the Defendant’s motive for the
robberies, to obtain bail money, constituted a continuing plan.

A trial court’s denial of a motion for severance will be reversed only when there has
been an abuse of discretion. See State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). This
Court will not interfere with the exercise of this discretion unless it appears on the face of
the record that the accused was prejudiced by the trial court’s ruling. State v. Wiseman, 643
S.W.2d 354, 362 (Tenn. Crim. App. 1982). Whether severance should be granted “depends
upon the facts and circumstances involved in the various crimes that are charged.” State v.
Morris, 788 S.W.2d 820, 822 (Tenn. Crim. App. 1990).

Rules regarding the consolidation and severance of offenses are included in the
Tennessee Rules of Criminal Procedure. Rule 8(b) of the Tennessee Rules of Criminal
Procedure, which allows for the permissive joinder of offenses, states: “Two or more
offenses may be joined in the same indictment, presentment, or information, with each
offense stated in a separate count, or consolidated pursuant to Rule 13 if the offenses
constitute parts of a common scheme or plan or if they are of the same or similar character.”
Tenn. R. Crim. P. 8(b). Rule 13(a) provides as follows: “The court may order consolidation
of two or more indictments, presentments, or informations for trial if the offenses and all
defendants could have been joined in a single indictment, presentment, or information
pursuant to Rule 8.” Tenn. R. Crim. P. 13(a).

Nonetheless, Rule 14 of the Tennessee Rules of Criminal Procedure states that “[i]f

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two or more offenses have been joined or consolidated for trial . . . the defendant shall have
a right to a severance of the offenses unless the offenses are part of a common scheme or
plan and the evidence of one would be admissible upon the trial of the others.” Tenn. R.
Crim. P. 14(b)(1). To avoid severance, both portions of the rule must be satisfied. See State
v. Hallock, 875 S.W.2d 285, 289 (Tenn. Crim. App. 1993).

1. Common Scheme or Plan

The first prong of Rule 14(b)(1) of the Tennessee Rules of Criminal Procedure
requires that the trial court find a common scheme or plan. In Tennessee, three categories
of evidence may be used to establish the existence of a common scheme or plan: (1) evidence
showing a distinctive design or signature crime; (2) evidence demonstrating a larger,
continuing plan or conspiracy; and (3) evidence that the offenses are part of the same
transaction. State v. Moore, 6 S.W.3d 235, 240 (Tenn. 1999). “Before multiple offenses may
be said to reveal a distinctive design, . . . the ‘modus operandi employed must be so unique
and distinctive as to be like a signature.’” Id. (quoting State v. Carter, 714 S.W.2d 241, 245
(Tenn. 1986)).

At the conclusion of the hearing on the motion to sever, the trial court found that,
because each robbery was carried out by two perpetrators, the robberies evidenced a “modus
operandi:”

In both places we have, I suppose, a driver and a hold-up person, whatever you
want to say, whether it’s a theft person or a robbery person. I think that, in and
of itself, regardless of all of the other significant factors–and identification
doesn’t play any part in the question of severance. It is the plan or the modus
operandi of the perpetrators.

Based upon its finding, the trial court ordered that the cases be joined for trial. We cannot
agree with the trial court that the modus operandi in this case is “so unique and distinctive
as to be like a signature.” See Moore, 6 S.W.3d at 240. The fact that the Defendant entered
a business while another individual remained outside is not so unique as to establish a
distinctive design in the criminal conduct.

Alternatively, we also consider the State’s argument, that the larger, continuing plan
exception was applicable because the Defendant’s motive for both robberies was to obtain
bond money which constitutes a continuing plan. The State’s theory that, because the
Defendant’s motive in both robberies was to obtain bond money, absent more, is not a
sufficient basis on which to deny severance. See Hallock, 875 S.W.2d at 290 (Tenn. Crim.
App. 1993).

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 2. Evidence of One Offense Admissible in the Trial of the Other Offense

The second prong of Rule 14(b)(1) of the Tennessee Rules of Criminal Procedure is
what the Tennessee Supreme Court has deemed the “primary inquiry” in any severance case:
whether the evidence of one offense would be admissible in the trial of the other if the two
offenses remained severed. State v. Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984). The
Court has stated that “‘[u]nless [it is] expressly tied to a relevant issue, evidence of a
common scheme or plan can only serve to encourage the jury to conclude that since the
defendant committed the other crime, he also committed the crime charged.’” Moore, 6
S.W.3d at 239 n.5 (quoting Hallock, 875 S.W.2d at 292).

The court has also stated that “a common scheme or plan for severance purposes is
the same as a common scheme or plan for evidentiary purposes.” Id. at 240 n.7. Thus,
Tennessee Rule of Evidence 404(b) is relevant to our analysis of this issue. Rule 404(b)
excludes evidence of “other crimes, wrongs, or acts” committed by the defendant when
offered only to show the defendant’s propensity to commit the crime charged. See Tenn. R.
Evid. 404(b). Generally, evidence that the accused committed crimes independent of those
for which he is on trial is inadmissible because such evidence lacks relevance and invites the
finder of fact to infer guilt from propensity. See Moore, 6 S.W.3d at 239; see also Tenn. R.
Evid. 404(b).

However, evidence of other crimes, wrongs, or acts may be admissible for other
purposes, such as “to show identity, guilty knowledge, intent, motive, to rebut a defense of
mistake or accident, or to establish some other relevant issue.” Moore, 6 S.W.3d at 239 n.5
(quoting Hallock, 875 S.W.2d at 292). Offenses that are part of a common scheme or plan
are typically offered to establish the identity of the perpetrator. Id. at 239. As the Tennessee
Supreme Court has noted, “[I]dentity is usually the only relevant issue supporting admission
of other offenses when the theory of the common scheme or plan is grounded upon a
signature crime.” Id.

The trial court, in this case, failed to address the second prong of the inquiry. We
must now determine whether evidence of one offense would be admissible in the trial of the
other if the offenses had been severed. After a thorough review, we cannot conclude that
evidence of the West Meade Cleaners robbery would have been admissible in the trial of the
Arby’s robbery had the offenses been severed. As previously discussed, the robberies were
not so distinctive as to constitute a “signature” that would establish the Defendant’s identity.
The State failed to offer evidence of motive beyond its minimal assertion that the Defendant
needed bond money, and nothing was raised at trial that required rebuttal of an accident or
mistake. Our Court has said, “It frequently happens that two distinct offenses are so
inseparably connected that the proof of one necessarily involves proving the other.” Hallock,

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875 S.W.2d at 290 (quoting Mays v. State, 238 S.W. 1096, 1102 (1921)) There are no issues
apparent in the record that would have necessitated proof from one of the robberies to
establish the other. And we do not find that the evidence is admissible to establish some
other relevant issue. We therefore conclude that the trial court erred by consolidating the
cases for trial.

A trial court’s error in denying a severance under Tennessee Rule of Criminal
Procedure 14(b)(1), however, will be reversed only if the defendant can show that the error
more probably than not affected the judgment. See Moore, 6 S.W.3d at 242; see also Tenn.
R. Crim. P. 52(a); Tenn. R. App. P. 36(b). In most severance cases, “‘the line between
harmless and prejudicial error is in direct proportion to the degree . . . by which proof
exceeds the standard required to convict.’” Moore, 6 S.W.3d at 242 (quoting Delk v. State,
590 S.W.2d 435, 442 (Tenn. 1979)); see also Shirley, 6 S.W.3d at 250. In this case,
overwhelming proof was presented of the Defendant’s guilt of the Arby’s crime. Both
Christian and another witness identified the Defendant in a police photographic lineup
shortly after the robbery. A license tag number for the vehicle used during the robbery was
given to police, who later connected it to the Defendant. Furthermore, the Defendant
confessed to the robbery at Arby’s. Because the evidence in this case was more than
sufficient to support the Defendant’s convictions, we cannot conclude that the denial of a
severance more probably than not affected the outcome of the trial. See Tenn. R. Crim. P.
52(a); Tenn. R. App. P. 36(b). We thus conclude that the trial court’s error in refusing to
sever the offenses was harmless. The Defendant is not entitled to relief on this issue.

D. Failure to Supply Christian’s Medical Record

The Defendant claims that the trial court erred when it failed to compel the State to
provide him Christian’s medical records. The State responds that, because the Defendant
failed to raise this issue in his motion for new trial, it is now waived.

Tennessee Rule of Criminal Procedure 16 describes the procedure for the State’s
disclosure of evidence:

(a) Disclosure of Evidence by the State.
(1) Information Subject to Disclosure.

. . .

(F) Documents and Objects. Upon a defendant’s request, the state shall permit
the defendant to inspect and copy or photograph books, papers, documents,
photographs, tangible objects, buildings, or places, or copies or portions

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 thereof, if the item is within the state’s possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial;
or

(iii) the item was obtained from or belongs to the defendant.

(G) Reports of Examinations and Tests. Upon a defendant’s request, the state
shall permit the defendant to inspect and copy or photograph the results or
reports of physical or mental examinations, and of scientific tests or
experiments if:

(i) the item is within the state’s possession, custody, or control;

(ii) the district attorney general knows-or through due diligence could
know-that the item exists; and

(iii) the item is material to preparing the defense or the state intends to
use the item in its case-in-chief at trial.

A trial court has wide discretion to fashion an appropriate remedy based upon the
circumstances of each case and the sanction must fit the circumstances of that case. See State
v. Leon Goins, No. W1999-01681-CCA-R3-CD, 1999 WL 1531111, at *2 (Tenn. Crim.
App., at Jackson, Dec. 27, 1999), perm. app. denied (Tenn. July 17, 2000). Id. (citations
omitted); see State v.James, 688 S.W.2d 463, 466 (Tenn. Crim. App.1984). Whether a
defendant has been prejudiced by the State’s failure to disclose information is a significant
factor in determining an appropriate remedy. State v. Smith, 926 S.W.2d 267, 270 (Tenn.
Crim. App. 1995). The Defendant bears the burden of showing “the degree to which the
impediments to discovery hindered trial preparation and defense at trial.” State v. Brown,
836 S.W.2d 557, 560 (Tenn. 1993).

In the Defendant’s amendment to his motion for a new trial he stated the following:

The trial court erred permitting [sic] State’s witness [Christian] to testify to
medical terminology (concussion) fully knowing the State’s failure to disclose
favorable and/o[r] exculpatory materials requested timely pretrial by the
[D]efendant.

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We conclude that, in his motion for a new trial, the Defendant fairly raised the issue of
whether the State complied with Rule 16. The evidence presented at the motion for new trial,
however, does not support the Defendant’s claim that the State failed to comply with Rule
16. The State did not use Christian’s medical record at trial but relied upon Christian’s own
testimony as to what she experienced and the visible scar remaining on her face, and there
is no evidence in the record that the State was in “possession, custody or control” of
Christian’s medical records. Further, to be entitled to relief, the Defendant must show that
the failure to discover the medical records “hindered trial preparation and defense at trial.”
See Brown, 836 S.W.2d at 560. The Defendant has not done so. Thus, the Defendant is not
entitled to relief as to this issue.

E. Sentencing

The Defendant contends that the trial court erred when it sentenced him because it
failed to consider mitigating factors. The State responds that the trial court did not err
because the Defendant did not present any mitigating factors to the trial court at the
sentencing hearing and, moreover, has failed upon appeal to identify mitigating factors the
trial court should have considered.

When a defendant challenges the length, range or manner of service of a sentence, this
Court must 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.” T.C.A. § 40-
35-401(d) (2009). As the Sentencing Commission Comments to this section note, the burden
is now on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401,
Sentencing Comm’n Cmts (2009). This means that if the trial court followed the statutory
sentencing procedure, made findings of facts which are adequately supported in the record,
and gave due consideration to the factors and principles relevant to sentencing under the
Sentencing Act, the appellate court may not disturb the sentence even if a different result was
preferred. T.C.A. § 40-35-103 (2009); State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The
presumption does not apply to the legal conclusions reached by the trial court in sentencing
a defendant or to the determinations made by the trial court which are predicated upon
uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); 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).

In conducting a de novo review, we must consider (1) the evidence, if any, received
at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing
and arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal
conduct, (5) any mitigating or statutory enhancement factors, (6) any statement that the
defendant made on his own behalf, and (7) the potential for rehabilitation or treatment. Tenn.

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Code Ann. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727
S.W.2d 229 (Tenn. 1986).

Section 40-35-113 contains a non-exclusive list of mitigating factors that a trial court
may apply to a defendant’s sentence “if appropriate for the offense.” T.C.A. § 40-35-
113(2009). The burden of proving applicable mitigating factors rests upon the defendant.
State v. Moore, No. 03C01-9403-CR-00098 (Tenn. Crim. App., at Knoxville, Sept. 18, 1995)
perm. app. denied (Tenn. 1996).

The sentence to be imposed by the trial court for a Class A felony is presumptively
the midpoint in the range when there are no enhancement or mitigating factors present.
Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to increase the sentence
within the range based upon the existence of enhancement factors and then reduce the
sentence as appropriate for any mitigating factors. T.C.A. § 40-35-210(d), (e). The weight
to be afforded an existing factor is left to the trial court’s discretion so long as it complies
with the purposes and principles of the 1989 Sentencing Act and its findings are adequately
supported by the record. T.C.A. § 40-35-210, Sentencing Commission Comments; Moss,
727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.

The Defendant was convicted of especially aggravated robbery which is a Class A
felony, and he was sentenced as a Range I offender for the Class A felony, which provides
for a sentencing range of fifteen to twenty-five years. T.C.A. § 40-35-112(a)(1) (1997). The
trial court sentenced the Defendant to twenty-two years. In considering mitigating factors,
the trial court stated, “There have been no mitigating factors submitted to the Court and the
Court finds no mitigating factors.” Upon our review of the record, we agree with the trial
court that there is no evidence in the record that supports the application of a mitigating
factor in this case. The Defendant is not entitled to relief as to this issue.

The Defendant’s brief implies that the trial court all together failed to consider
mitigating factors. He argues that, because the Defendant was pro se, the trial court should
have recognized his lack of exposure to statutory sentencing guidelines and considered
mitigating factors regardless of the fact that the Defendant did not submit any mitigating
factors for consideration. We note that, even though the Defendant elected to represent
himself for the sentencing hearing, the trial court appointed him “elbow counsel”, should he
wish to seek legal advice. Further, the sentencing hearing transcript indicates that the trial
court did consider mitigating factors, even though not submitted by the Defendant, and found
none applicable in this case. The Defendant is, therefore, not entitled to relief on this issue.

III. Conclusion

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 Based upon the foregoing and the record as a whole, we affirm the judgment of the
trial court.

_________________________________
ROBERT W. WEDEMEYER, JUDGE

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