State of Tennessee v. Marlos Shields

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 6, 2009

STATE OF TENNESSEE v. MARLOS SHIELDS

Direct Appeal from the Criminal Court for Shelby County
No. 05-08713 Lee V. Coffee, Judge

No. W2007-01721-CCA-R3-CD - Filed July 15, 2009

The defendant, Marlos Shields, was indicted on charges of aggravated robbery and aggravated
burglary. After a jury trial, the defendant was convicted of the charged offenses. The trial court
imposed a sentence of twelve years for the aggravated robbery conviction and six years for the
aggravated burglary conviction and ordered the sentences to run consecutively for an effective
sentence of eighteen years in the Department of Correction. On appeal, the defendant argues that:
(1) the trial court erred in denying the defendant’s motion for a mistrial; (2) the evidence was
insufficient to sustain his convictions; and (3) the trial court erred in imposing an excessive sentence.
Following our review of the parties’ briefs, the record, and the applicable law, we affirm the
judgments of the trial court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which ALAN E. GLENN and CAMILLE R.
MCMULLEN , JJ., joined.

Jeff Woods, Memphis, Tennessee, for the appellant, Marlos Shields.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Carrie Shelton and Kirby May, Assistant District
Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTS

At trial, Craig Love, the victim in this case, testified that he lived with his mother, who
suffered from Alzheimers and poor health. On July 2, 2005, he was at his home interviewing a new
nurse, Ms. Shirley Ann Rice, to help care for his mother. Around 9:30 a.m., the defendant knocked
on the door looking for work. Mr. Love testified that he was acquainted with the defendant because
the defendant had done some yard work for him in the past. Mr. Love recalled that he told the
defendant that he did not have any work for him but to come back after the 4th of July holiday. In
response, the defendant did not leave but insisted that Mr. Love provide him with some work. Mr.
Love repeated that he did not have any work and proceeded to shut the door. Mr. Love said that as
the door closed the defendant “broke in and hit me.” The defendant hit Mr. Love in the stomach and
back. A scuffle ensued and they both fell to the ground. The defendant then picked up a brick and
hit him in the head with it. During the attack, the defendant grabbed a rifle Mr. Love kept in the
kitchen corner. When Mr. Love told the defendant the rifle was empty, the defendant grabbed a pair
of needle-nose pliers and jabbed Mr. Love multiple times in the back. The defendant then held the
pliers against Mr. Love’s neck and said, “[w]here’s the money.” Mr. Love told the defendant that
he had some money in his pocket. Although Mr. Love could not specifically remember, he believed
the defendant grabbed his wallet “out of my pocket as I turned over.” Mr. Love recalled that he had
his driver’s license, some credit cards, two lottery tickets, a fake million dollar bill, and four to five
hundred dollars in cash in his wallet the morning of the attack. Mr. Love noted that he often paid
the defendant for yard work with cash from his wallet.

Mr. Love testified that the defendant left his house after the attack. Soon thereafter, the
police arrived with Ms. Rice. Mr. Love told police what happened and, on July 4, 2005, he was
asked to come to the police station. Mr. Love went to the police station where he gave a statement
and reviewed a photographic lineup. Mr. Love identified the defendant from the photographic lineup
as the man who attacked and robbed him. On cross-examination, Mr. Love acknowledged that he
could not remember the details of the attack. He said, “I don’t remember every exact move . . . but
I remember the essence of what the heck happened.” Mr. Love also acknowledged that the
paramedics looked him over and told him that he “didn’t need stitches in [his] head or anything.”
Mr. Love said that he did not go to the hospital because no one was available to take care of his
mother while he was gone.

Shirley Ann Rice testified that she was hired by Mr. Love as a home-health nurse on July 2,
2005. It was her first day on the job. While Mr. Love was showing Ms. Rice around the house and
explaining his mother’s care requirements, someone knocked on the door. Mr. Love excused himself
and went to the door. At this time, Ms. Rice was back in a bedroom with Mr. Love’s mother. Ms.
Rice recalled that she heard Mr. Love talking with another man. She then heard the man say, “[g]ive
me my money” and Mr. Love respond, “[t]his is not a good time. You need to go and come back.”
Ms. Rice heard a loud noise, walked out of the bedroom, and saw a man hit Mr. Love. She then ran
out of the house and sought help. The police were called and arrived at Mr. Love’s residence about
ten minutes after the incident.

Memphis Police Officer Lawrence Evans testified that he arrived at Mr. Love’s residence
within six minutes of receiving a robbery call. He took Mr. Love’s statement. Mr. Love recounted
that he had been attacked in his home by a Mr. Marlos, “who normally does yard work for him.” Mr.
Love explained the details of the attack and reported that his wallet was stolen. Officer Evans
recalled that a few hundred dollars and credit cards were reported to be in Mr. Love’s wallet. Officer
Evans stated that, while investigating the case, he was able to ascertain the whereabouts of the
defendant and relayed the information to other officers. Officer Evans recalled that the defendant

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matched the general physical description Mr. Love and Ms. Rice gave on July 2, 2005. Officer
Evans acknowledged that no physical evidence was recovered from Mr. Love’s house.

Sergeant Dale Hensley of the Memphis Police Department testified that he called Mr. Love
and asked him to come to the police station after the defendant had been placed in custody. Sergeant
Hensley took pictures of some of Mr. Love’s injuries, took Mr. Love’s statement, and asked Mr.
Love to look at a photographic lineup. Mr. Love positively identified the defendant from the
photographic lineup as the man who attacked and robbed him. Thereafter, Sergeant Hensley spoke
with the defendant after advising him of his Miranda rights. The defendant initially said that he had
never met Mr. Love, did not know him, and did not work for him. However, after Sergeant Hensley
confronted the defendant with Mr. Love’s positive identification, the defendant said he interviewed
with Mr. Love once for a job but decided not to take it because Mr. Love had an attitude.

The defendant testified on his own behalf. He testified that he knew Mr. Love because he
had done yard work for him in 2005. He said he had done landscaping work for Mr. Love for about
six months and worked five days a week at nine dollars per hour. However, the defendant asserted
that he was not at Mr. Love’s residence July 2nd, but rather, he was at the Dixie Homes projects
around 9:30 that morning playing dominoes or cards with some friends. While the defendant could
not recall his friends names, he claimed that he played dominoes or cards with his friends at the
projects until 1:00 p.m. The defendant stated that he was arrested as a suspect July 3rd by Officer
Anderson. On cross-examination, the defendant said he did not change his story about knowing Mr.
Love. The defendant acknowledged that he did not give Officer Hensley the names of his friends
he was with the morning of July 2nd.

Officer Chester Anderson was called by the state as a rebuttal witness. Officer Anderson
testified that on July 3rd, he took the defendant into custody and transported him to the police
station. At that time, Officer Anderson asked the defendant where he was the day before. The
defendant responded that he was working. According to Officer Anderson, the defendant made no
mention of playing dominoes or games.

Based on the foregoing evidence, the jury found the defendant guilty of aggravated robbery
and aggravated burglary. The trial court sentenced the defendant to twelve years for aggravated
robbery and six years for aggravated burglary. The court ordered that the defendant’s sentences run
consecutively for a total effective sentence of eighteen years.

ANALYSIS

I. Mistrial

The defendant first argues that the trial court erred in denying his motion for a mistrial when
the state called Officer Anderson to rebut the defendant’s testimony without previously disclosing
the substance of the defendant’s statement to Officer Anderson as required by the rules of discovery.

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 The record reflects that the defendant through counsel filed a pretrial motion for discovery.
During the trial, the defendant testified that on the morning of the robbery he was playing dominoes
or cards with friends at the Dixie Homes projects. The defendant recalled that he discovered the
police were looking for him and he turned himself in on July 3rd. The defendant recounted that
Officer Anderson was the officer who escorted him to the police station. After the defendant
testified, a recess was taken. After the recess, defense counsel was apprised of the fact that Officer
Anderson would be called to impeach the defendant’s testimony regarding his whereabouts on July
2nd. At this time, defense counsel lodged an objection, asserting that Officer Anderson’s testimony
concerning the defendant’s statements were not disclosed to the defense pursuant to the rules of
discovery. In response, the state prosecutor submitted that: the defendant’s statement was never
memorialized by Officer Anderson; the defense was aware of Officer Anderson as he was listed on
the arrest ticket and indictment; and the defendant referenced him when testifying. The state
prosecutor also submitted that he informed defense counsel of his intent to call Officer Anderson to
the stand “the minute I knew [Officer] Anderson had . . . information from this defendant . . . for
impeachment purposes.”

In addressing the defense’s objection, the trial court found that Officer Anderson’s identity
was noted on the arrest ticket and indictment and known to the defendant. The court then stated the
following:

This is rebuttal proof. The State of Tennessee is not obligated under any
discovery rules to provide rebuttal proof to the defense because it would be
impossible to guess at or determine what rebuttal evidence might become relevant
or admissible. The state has satisfied its discovery obligation in its case in chief.

This is rebuttal proof. [The defendant] cannot claim any surprise . . . because
[the defendant] knew or should have known, in fact, [the defendant] did know the
identity of Officer Anderson. [The defendant] himself injected certain [facts] into the
case that apparently may or may not be true, and the State of Tennessee has an
absolute[] right to rebut those issues.

And the state is not under any obligation to provide any information on
rebuttal witnesses. That would be an impossible standard to hold prosecutors to, to
ask prosecutors to provide any and all rebuttal information when the state has
absolutely no idea what the defense case might be in most cases.

The court overruled the defense’s objection and allowed Officer Anderson to testify as a rebuttal
witness for the state.

The decision of whether or not to grant a mistrial rests within the sound discretion of the trial
court. State v. McKinney, 929 S. W.2d 404, 405 (Tenn. Crim. App. 1996). The purpose of a mistrial
is to correct the damage done to the judicial process when some event has occurred which would
preclude an impartial verdict. Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). This

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court will not disturb the trial court’s decision unless there is an abuse of discretion. State v.
Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). On appeal, the defendant bears the burden
of establishing that a “manifest necessity” for granting a mistrial existed. Id.

Tennessee Rule of Criminal Procedure 16(a)(1)(A) provides:
Upon a defendant’s request, the state shall disclose to the defendant the substance of
any of the defendant’s oral statements made before or after arrest in response to
interrogation by any person the defendant knew was a law-enforcement officer if the
state intends to offer the statement in evidence at trial[.]

This provision of Rule 16 has been interpreted to require the state to disclose the substance of any
oral statement made by the defendant in response to an officer’s interrogation whether admitted as
part of the state’s case in chief or in rebuttal. See State v. Jenkins, 859 S.W.2d 364, 365 (Tenn.
Crim. App. 1993); State v. Balthrop, 752 S.W.2d 104, 107 (Tenn. Crim. App. 1988). Although it
is not entirely clear from the record whether the defendant’s oral statement to Officer Anderson was
made in response to an interrogation, we find that the admission of the statement to be a discovery
violation. Nonetheless, we note that the failure to comply with the discovery rule does not
automatically warrant a mistrial.

When a party fails to comply with a discovery request, the court may order such party to
permit the discovery or inspection, grant a continuance, or prohibit the party from introducing
evidence not disclosed, or it may enter such other order as it deems just under the circumstances.
Tenn. R. Crim. P. 16(d)(2). The trial court has broad discretion to fashion a remedy that is
appropriate for the circumstances of each case and the sanction must fit the circumstances of that
case. 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) (citations omitted). When
determining the appropriate remedy, the trial court must consider whether a party was actually
prejudice by the discovery violation and whether the prejudice cannot be otherwise eradicated. State
v. Garland, 617 S.W.2d 176, 185 (Tenn. Crim. App. 1981). The relevant inquiry is what prejudice
resulted from the particular discovery violation, not simply the prejudicial effect the evidence,
otherwise admissible, had on the issue of a defendant’s guilt. State v. Ronald Mitchell, No.
02C01-9702-CC-00070, 1997 WL 567913, at *3 (Tenn. Crim. App., at Jackson, Sept. 15, 1997),
perm. app. denied (Tenn. April 27, 1998) (citing State v. Cottrell, 868 S.W.2d 673, 677 (Tenn.
Crim. App. 1992). “[T]he exclusion of the evidence is a drastic remedy and should not be
implemented unless there is no other reasonable alternative.” State v. Smith, 926 S.W.2d 267, 270
(Tenn. Crim. App. 1995).

We see no abuse of discretion in the denial of the motion for a mistrial. The record indicates
that the defendant was aware of Officer Anderson and was apprised of the state’s intent to call
Officer Anderson to impeach the defendant’s testimony regarding his whereabouts. The defendant
did not request a continuance at trial to review the substance of the oral statement and sought only
the exclusion of Officer Anderson’s testimony. Also, the defendant was given the opportunity to
cross-examine Officer Anderson and otherwise challenge the credibility and reliability of his

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testimony concerning the defendant’s oral statement. In State v. Underwood, 669 S.W.2d 700, 704
(Tenn. Crim. App. 1984), this court held that oral statements made by a defendant, but not properly
disclosed, could be admitted if they were (1) known to the defendant and (2) their introduction was
not an undue burden on the defendant. The statement in this case clearly meets both criteria and the
trial court properly allowed the statement to be used for impeachment of the defendant’s testimony.
Given the lack of prejudice in this instance, the decision to deny the motion for a mistrial was not
an abuse of discretion and is affirmed.

The defendant next contends that the trial court erred in denying his motion for a mistrial
based on the fact that a juror announced in open court that she knew Officer Anderson. The
defendant submits that Juror Seals’ comment to the court that she knew Officer Anderson “could
have led the jury into affording Officer Anderson’s testimony more credibility” than his testimony
standing alone.

The record reflects that after a recess Officer Anderson was called to testify as the state’s
rebuttal witness. As Officer Anderson approached the witness stand, Juror Seals announced in open
court, “I know Chester Anderson.” In response, the trial court immediately excused the other jurors,
including the alternate jurors, and examined Juror Seals regarding the extent of her relationship with
Officer Anderson. At the conclusion of the examination, the trial court thanked Juror Seals for her
service but excused her from the jury out of an “over abundance of caution.” The court also denied
the defendant’s request for a mistrial, finding no sufficient reason or manifest necessity to declare
a mistrial. The remaining jurors were then allowed to return to the courtroom, and the court
instructed them as follows:

Ladies and gentlemen, right before we took a recess the Court was getting
ready to swear in Officer Chester Anderson, and one of your members, Ms. Carolyn
Seals, got the Court’s attention and indicated that she might have known Officer
Chester Anderson.

And I’ve conducted an inquiry outside of your presence, and you see that Ms.
Seals is no longer one of your members . . . . Ms. Seals hasn’t done anything wrong,
I want to emphasize, but she did exactly what the Court told all of [you] before the
trial – that if you knew any witnesses or thought you might know anybody, to bring
it to the Court’s attention.

[Ms.] Seals indicated that she recognized Chester Anderson, Officer
Anderson . . . and because of the fact that Ms. Seals has known Officer Anderson, the
Court has excused Ms. Seals from serving further on this jury because it wouldn’t be
fair to anybody – Ms. Seals, Officer Anderson, the State of Tennessee, or [the
defendant] to have a juror who might know a witness [and] to make a decision as to
whether or not that witness is credible or not credible.

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 And so the Court has excused Ms. Seals, and I’m going to order whatever you
heard from Ms. Seals before we took a recess that you disregard that. You cannot
consider that for any purpose at all. Again, Ms. Seals has not done anything wrong.
. . . [You must] base your verdict on the testimony that you heard in the courtroom.

. . . you [must] determine Officer Anderson’s credibility based on what you
hear in court and what you see during the course of his testimony. Does everyone
understand that?

The record reflects that all the jurors indicated they would follow the instructions of the court.

To reiterate, this court will not disturb the trial court’s decision to grant or deny a mistrial
unless there is an abuse of discretion. Williams, 929 S.W.2d at 388. Contrary to the defendant’s
allegation, there exists no evidence in the record showing the defendant was prejudiced by Juror
Seals’ comment that she knew Officer Anderson. Moreover, the record clearly indicates that the trial
court implemented proper measures to cure any possible prejudice to the defendant. The court
discretely dismissed Juror Seals and instructed the jury to ignore Juror Seals’ comment and evaluate
Officer Anderson’s credibility based on his testimony and nothing else. The jury affirmed that they
would follow the court’s instructions. Accordingly, we conclude that the trial court did not abuse
its discretion in failing to grant a mistrial, and we deny the defendant relief on this issue.

II. Sufficiency of Evidence

The defendant next challenges the sufficiency of the convicting evidence based on the
“numerous inconsistencies in Craig Love’s testimony and Shirley Rice’s testimony.”

It is well-established that once a jury finds a defendant guilty, his or her presumption of
innocence is removed and replaced with a presumption of guilt. State v. Evans, 838 S.W.2d 185,
191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the burden of demonstrating
to this court why the evidence will not support the jury’s verdict. State v. Carruthers, 35 S.W.3d
516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden,
the defendant must establish that no “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); State v.
Evans, 108 S.W.3d 231, 236 (Tenn. 2003); see Tenn. R. App. P. 13(e). In contrast, the jury’s verdict
approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor of the
state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be drawn from that
evidence. Carruthers, 35 S.W.3d at 558. Questions concerning the credibility of the witnesses,
conflicts in trial testimony, the weight and value to be given the evidence, and all factual issues
raised by the evidence are resolved by the trier of fact and not this court. State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the evidence. State v. Rice,
184 S.W.3d 646, 662 (Tenn. 2006). Likewise, we do not replace the jury’s inferences drawn from

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the circumstantial evidence with our own inferences. State v. Reid, 91 S.W.3d 247, 277 (Tenn.
2002).

The defendant was convicted of aggravated robbery and aggravated burglary. Aggravated
robbery is defined in pertinent part as “robbery as defined in § 39-13-401 . . . [w]here the victim
suffers serious bodily injury.” Tenn. Code Ann. § 39-13-402(a)(2). “Robbery is the intentional or
knowing theft of property from the person of another by violence or putting the other person in fear.”
Id. § 39-13-401. Aggravated burglary is defined in relevant part as entering a habitation without the
effective consent of the owner and with the intent to commit a felony, theft, or assault. Id. §
39-14-402(a)(1), -403(a). A habitation is defined, as “any structure . . . which is designed or adapted
for the overnight accommodation of persons[.]” Id. § 39-14-401(1)(A).

Viewed in the light most favorable to the state, the evidence presented at trial established that
the defendant forced his way into Mr. Love’s residence, assaulted him with a large brick and a pair
of needle-nose pliers, and demanded money. During the assault, the defendant stole Mr. Love’s
wallet containing several hundred dollars and credit cards. Mr. Love reported the incident to the
police and positively identified the defendant as the individual who attacked him. Although Ms.
Rice did not see the individual who attacked Mr. Love, she corroborated the fact that Mr. Love was
attacked. The defendant’s sufficiency argument centers around a challenge to the credibility of the
state witnesses. The weight and credibility of the state witnesses’ testimony and the reconciliation
of conflicts in their testimony, if any, are matters entrusted exclusively to the jury as the trier of fact.
Here, the jury by its verdict accredited the testimony of the state witnesses. Because the evidence
was sufficient for a rational jury to find the defendant guilty beyond a reasonable doubt, we affirm
the defendant’s convictions. The defendant is without relief as to this issue.

III. Sentencing

A. Length of Sentence
The defendant next contends that the trial court erred in imposing an excessive sentence of
eighteen years imprisonment.

Since a sentencing issue has been raised on appeal, we conduct a de novo review of the
record with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. §
40-35-401(d). This 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). However, if the record shows
that the trial court failed to consider the sentencing principles and all relevant facts and
circumstances, then a review of the challenged sentence is de novo without the presumption of
correctness. State v. Ashby, 823 S. W.2d 166, 169 (Tenn. 1991). In conducting a de novo review
of a sentence, we 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 statements made by the accused in his own behalf, and (h) the

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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). On appeal, the party
challenging the sentence imposed by the trial court has the burden of establishing that the sentencing
decision was improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments. We
will uphold the sentence imposed by the trial court if: (1) the sentence complies with our sentencing
statutes, and (2) the trial court’s findings are adequately supported by the record. See State v. Arnett,
49 S.W.3d 250, 257 (Tenn. 2001); see also Tenn. Code Ann. § 40-35-210.

The mechanics of arriving at an appropriate sentence are spelled out in the Criminal
Sentencing Reform Act of 1989 and its amendments. The trial court is free to select any sentence
within the applicable range so long as the length of the sentence complies with the purposes and
principles of the Sentencing Act. Id. § 40-35-210; see also State v. Carter, 254 S.W.3d 335, 343
(Tenn. 2008) (noting that such principles encompass themes of punishment fitting of the crime,
deterrence, and rehabilitation). However, the trial court is required to place on the record “what
enhancement or mitigating factors were considered, if any, as well as the reasons for the sentence,
in order to ensure fair and consistent sentencing.” Tenn. Code Ann. § 40-35-210(e). Once applied,
the chosen enhancement factor becomes a sentencing consideration subject to review under
Tennessee Code Annotated section 40-35-401(c)(2). Thus, while the court can weigh enhancement
factors as it chooses, the court may only apply the factors if they are “appropriate for the offense”
and “not already an essential element of the offense.” Id. § 40-35-114.

The defendant was convicted of aggravated robbery, a Class B felony, and aggravated
burglary, a Class C felony. See id. §§ 39-13-402(b); 39-14-403(b). He was classified as a Range
I offender. Therefore, his sentencing range was eight to twelve years for his B felony, and three to
six years for his C felony. Id. § 40-35-112(a). The defendant received the maximum sentences in
the range as the trial court sentenced the defendant to twelve years for aggravated robbery and six
years for aggravated burglary.

In challenging the length of his sentences, the defendant first contends that the trial court
improperly gave weight to the victim’s desire that the court “impose the maximum sentence for both
offenses.” However, the record does not support this contention. The portion of the record cited by
the defendant reveals nothing more than the court’s brief summation of the contents of the victim’s
letter, and its admission into evidence. Moreover, we note that a court should consider relevant and
reliable evidence from the victim as part of its sentencing determination. See generally State v. Ring,
56 S.W.3d 577 (Tenn. Crim. App. 2001); see also Tenn. Code Ann. § 40-35-210(b)(5).
Accordingly, the defendant’s contention is misplaced and without merit.

The defendant next takes issue with the trial court’s application of enhancement factor (14),
that the defendant abused a position of private trust. As to enhancement factors, the trial court found
that the defendant had a previous history of criminal convictions evidenced by the presentence
report, that the defendant abused a position of private trust that significantly facilitated the
commission of the offenses, and the defendant employed a deadly weapon in the commission of
aggravated burglary. See Tenn. Code Ann. § 40-35-114(1), (14), (9). The court found no mitigating

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factors. Regarding factor (14), the trial court found that the defendant abused a position of private
trust because the victim would “not have answered the door without a gun, had he not known the
person that was at his door, asking to enter into his house.” The court then found that the
defendant’s actions terrorized the entire household and without “being in a position to enter that
house” the defendant would not have been in a position to terrorize the household.

It is well-settled that proper application of the private trust factor requires that the court
examine “the nature of the relationship,” and whether that relationship “promoted confidence,
reliability, or faith.” State v. Gutierrez, 5 S.W.3d 641, 646 (Tenn. 1999) (quoting State v. Kissinger,
922 S.W.2d 482, 488 (Tenn. 1996)). “A relationship which promotes confidence, reliability, or faith,
usually includes a degree of vulnerability.” Id. It is the exploitation of this vulnerability to achieve
the criminal offense which is deemed more blameworthy and thus justifies application of the
enhancement factor. Id.

The record in this case does not provide a sufficient factual basis for applying enhancement
factor (14), abuse of private trust. To begin, nothing in the record suggests that the victim answered
the door to his residence differently for strangers (with a gun) than he did for people he knew
(without a gun). In fact, the record indicates that the defendant was not allowed inside the residence
and was told to leave prior to forcing his way into the residence. The record also establishes that the
relationship between the victim and the defendant was casual and tentative in that the victim knew
the defendant because he had done some yard work for him a couple of times in the past. Therefore,
it is our view that the evidence in the record neither demonstrates a relationship which promoted
confidence, reliability, or faith, nor the abuse of such a relationship by the defendant in order to
substantially facilitate the offenses of aggravated robbery and aggravated burglary. Accordingly, we
conclude that the trial court erred in finding that the defendant abused a position of private trust.

However, an error in the application of enhancement factors will not necessarily result in
modification of the sentence if the trial court, in determining the specific sentence, considered the
nature and characteristics of the crime, the character and background of the defendant, and that the
imposed sentence is not inconsistent with the purposes of the Sentencing Act. See Tenn. Code Ann.
§ 40-35-210(b). Despite the trial court’s reliance on an inapplicable enhancement factor, the record
supports the court’s consideration of factor (1), the defendant’s criminal history; and factor (9), that
the defendant employed a deadly weapon in the commission of aggravated burglary. The record
shows the defendant had prior convictions for simple assault, disturbing the peace, a weapons
offense, escape from a workhouse through violence, and breaking and entering. The record also
reveals that the defendant employed a large brick and needle-nose pliers to assault the victim. The
record reflects that in determining the specific sentence length, the trial court considered the
provisions of Tennessee Code Annotated section 40-35-210, as well as the required principles of
sentencing. As such, we affirm the sentences as imposed.

B. Consecutive Sentencing
Next, the defendant challenges the court’s imposition of consecutive sentencing.
Specifically, he argues that the trial court erred by ordering him to serve his sentences consecutively

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on the basis that the defendant was a dangerous offender without evidence that an “extended
sentence is necessary to protect the public against further criminal conduct” by the defendant.

When a defendant is convicted of more than one criminal offense, the trial court may order
that the sentences run concurrently or consecutively as guided by Tennessee Code Annotated section
40-35-115. Pursuant to this code section, a trial court may order consecutive sentencing if any of
the following criteria are found by a preponderance of the evidence:

(1) The defendant is a professional criminal who has knowingly devoted such
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 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 victim or victims;

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

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b). However, if the trial court imposes consecutive sentencing based
upon a finding that the defendant is a dangerous offender, the court must also determine whether the
sentences imposed are reasonably related to the severity of the offenses and necessary to protect the
public from further criminal activity by the defendant. State v. Wilkerson, 905 S.W.2d 933, 939
(Tenn. 1995). Additionally, the trial court should consider general sentencing principles, including
whether the length of a sentence is justly deserved in relation to the seriousness of the offense. State
v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). The decision to impose consecutive sentencing falls
within the sound discretion of the trial court. See State v. Adams, 973 S.W.2d 224, 230-31 (Tenn.
Crim. App. 1997).

In ordering consecutive sentences, the trial court stated the following in relevant part:

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 [T]he Court finds, for the record, that [the defendant] is a dangerous offender
whose behavior indicates little or no regard for human life. And, the court finds that
[the defendant] had no hesitation about committing a crime in which the risk to
human life is high.

....

This defendant attacks [Mr. Love] who had graciously given [the defendant]
employment, had allowed [the defendant] to work . . . some five months . . . . And,
the defendant invaded Mr. Love’s house in the presence of his very ill mother, in the
presence of new help . . . . And, [the defendant] invaded that house, struck [Mr.
Love] with a brick, and stabbed Mr. Love some twenty times, and threatened to kill
Mr. Love in Mr. Love’s own house. A crime that is absolutely shocking to the
conscience of everybody in Memphis, Shelby County, Tennessee.

A home invasion is one of the most . . . frightening crimes that can happen
to anyone. If you cannot be safe in the sanctity of your home, the question becomes,
where in the world can you be safe in this community. And, when you’re at home,
trying to take care of your mother, who is very ill, bedridden, and you’re attacked and
brutalized and stabbed and bashed in the head. [sic] Mr. Love testified that he
couldn’t even go to the hospital because he didn’t have anybody to care for his
mother . . . .

And, the Court finds that the circumstances of the offenses are extremely
aggravated. The Court further finds that confinement for an extended period of time
is necessary to protect this community, to protect society from the defendant’s
unwillingness to lead a productive life, and that the defendant has a history of
resorting to criminal acts in order to facilitate or to sustain his existence.

This Court finds that this defendant has a long history of committing offenses
not only against this state, but against the state of Michigan. This Court finds the
defendant has committed offenses while incarcerated, not only in this state, but also
in other states.

....

And, this Court further finds that the aggregate length of the sentence
reasonably relates to the offenses committed by the defendant, and for which the
defendant stands convicted.

While we were unable to corroborate all of the court’s findings in this case, we perceive no
error in the court’s finding that the defendant was eligible for consecutive sentencing because he was

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a dangerous offender. It is our view that the court sufficiently articulated its reasons for finding that
the defendant was a dangerous offender, including why the sentences imposed reasonably related to
the seriousness of the offenses and were necessary to protect the public from further criminal activity
by the defendant. The record reflects that the defendant forced himself into the victim’s home,
demanded money, and then violently assaulted the victim with two deadly weapons, a brick and
pliers. In sum, the court’s findings appear to be supported by the record and meet the threshold
burden for imposing consecutive sentencing. Accordingly, the defendant is not entitled to relief on
this issue.

CONCLUSION

Based on the foregoing review, the judgments of the trial court are affirmed.

___________________________________
J.C. McLIN, JUDGE

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