State of Tennessee v. Darrell Toomes

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 19, 2005

STATE OF TENNESSEE v. DARRELL TOOMES

Appeal from the Circuit Court for Lauderdale County
No. 7561 Joseph H. Walker, III, Judge

No. W2004-01739-CCA-R3-CD - Filed June 27, 2005

A Lauderdale County Circuit Court jury convicted the defendant, Darrell Toomes, of robbery, a
Class C felony. The trial court sentenced him as a Range I, standard offender to five years in the
Department of Correction. On appeal, the defendant contends (1) that the evidence is insufficient
to convict him as the perpetrator, (2) that the trial court erred by denying his motion to suppress
evidence relating to a photograph array and a subsequent in-court identification of him, and (3) that
his sentence is excessive. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN
E. GLENN , J., joined.

Gary F. Antrican, District Public Defender, and Julie K. Pillow, Assistant Public Defender, for the
appellant, Darrell Toomes.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Tracey Anne Brewer, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

This case relates to the snatching of a purse from Mary Russell, an eighty-five-year-old
woman. Martha Rudd, the victim’s sister and also eighty-five years old, testified that at 11:00 or
11:15 a.m. on March 28, 2003, she and the victim returned to their home in Ripley, Tennessee, after
she drove the victim to see her doctor for a routine eye examination. She said that shortly after they
drove the car into the garage, a man appeared at the passenger’s side door where the victim was
sitting. She said that as they got out of the car, the defendant asked them if he could mow their lawn.
She said that they told him no but that he followed them out of the garage and asked the victim,
“Who owns all of this?” She said that the victim replied, “We do,” and that the defendant then asked
the whereabouts of the victim’s husband but that she did not answer him. She said the defendant
continued to follow them as they walked approximately forty feet to the back door of the house
where he snatched the victim’s purse. She said she was unlocking the door when she heard the
victim scream. She said she turned around to see the defendant running across the yard with the
purse and heading toward the street. She said she called the police.

Ms. Rudd testified that she stood face to face with the man who took her sister’s purse and
that she got a good look at him. She said he was wearing a grey jogging suit with a hood which was
pulled up and covered his hair but not his face. She said she described him to the police as a slim,
light-colored African-American man, about five feet and four inches tall. During her testimony, she
positively identified the defendant as the man who took the victim’s purse. She said that she also
saw the defendant in general sessions court in September 2003, a few months after the robbery, and
that she identified him on that day as the perpetrator.

On cross-examination, Ms. Rudd acknowledged that she occasionally wore glasses to read.
She conceded that the conversation with the defendant on the day of the robbery did not last long and
admitted that the victim and the defendant walked behind her as they approached the back door. She
acknowledged not seeing the defendant take the purse. She said that she had her back to him as she
unlocked the door and that she only turned around when the victim screamed. She said, however,
that she saw the defendant running away with the purse. She said she had not seen the defendant
before that day. She acknowledged that she was face to face with the defendant only while in the
garage and said that the garage has an inside light which turns on automatically when the door is
opened. She said that she and the victim looked at the photographs the detective brought to their
house and that she picked one which showed the man who robbed her sister. She said the victim
could not decide between two photographs. Defense counsel showed her the photograph array she
was shown previously by the detective, and she acknowledged she had chosen photograph number
three, which was not a picture of the defendant but of his twin brother, Terrell Toomes.

Ripley Police Officer Jimmy Drake testified that he responded to the robbery call at the
victim’s house and that a patrol car was already there when he arrived approximately three minutes
later. He said he drove toward Elm Street, the direction the suspect reportedly ran. He said he
arrived at Elm Street about one minute later and saw a man whose appearance was consistent with
the description of the robbery suspect: an African-American male, slender build, five feet four inches
to five feet six inches tall, and wearing a grey jogging suit. He said the suspect emerged from behind
a house, looked to the right, and fled upon seeing him. He said he chased the suspect through some
yards, behind a house, and into the woods where he lost sight of him. He said that the suspect had
looked directly at him and that he recognized him as one of the Toomes brothers. He identified the
defendant in court as the man he chased and said that he knew him from previous dealings and
conversations he has had with the Toomes brothers during the past ten years. He admitted that the
defendant and his brother look very similar and that he has had difficulty telling them apart. He
testified that after he lost sight of the defendant, he and Investigator Jordan began searching the area
between the victim’s house and Elm Street and that they discovered the victim’s purse along with
some of its contents.

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 On cross-examination, Officer Drake acknowledged that he and the defendant looked at each
other for only a second or two and admitted that his patrol car was moving at the time. He said the
defendant was fifty to seventy-five feet away when he first saw him.

Mary Russell, the victim, testified that she had an appointment with an ophthalmologist on
March 28, 2003, and that he dilated her eyes during the examination. She said that Ms. Rudd drove
her to the appointment and that they returned home at about 11:00 or 11:15 a.m. She said that they
parked in the garage and that as they were preparing to get out of the car, an African-American man
approached her. She said that he asked her if she needed her yard mowed and that she told him they
already had someone to do that. She said that Ms. Rudd walked around the car and that they both
headed toward the house. She said that the defendant walked with them and asked if they owned the
yard and that she replied yes. She said that the defendant then inquired as to the whereabouts of her
husband but that she did not respond. She said that she asked him what he wanted and that he
replied, “ten dollars.” She said that the defendant was beside her while they walked and that Ms.
Rudd was in front of them. She said that when Ms. Rudd reached the back door to their house, the
defendant suddenly grabbed her purse and she screamed. She said that she was carrying the purse
on her arm and that she tried to grab it from him but that he ran with the purse toward Elm Street.
She said she was frightened by the incident. She said that she yelled, “He’s got my purse,” and that
Ms. Rudd called the police. She said that a police officer arrived immediately thereafter and that her
purse and its contents were recovered, except for five or six dollars. She identified the defendant
in court as the man who grabbed her purse.

On cross-examination, the victim testified that she and the defendant were face to face and
that they talked for only a few minutes before he took her purse. She said that she had not seen him
before that day and acknowledged that Officer Jordan brought photographs for her and Ms. Rudd
to examine. Defense counsel showed her the same photograph array and she recalled choosing
numbers three and five. She said she was confused that day but she was certain the man who took
her purse was the man in photograph three. During redirect examination, she said that she did not
fall down when the defendant took her purse but that she “grabbed to try to keep from it.” The
prosecutor asked her if the defendant used force to take the purse and she replied, “Yes, he got it.
It was on my arm, and he grabbed it off me, and I tried to take the other hand to keep it, but, you
know, of course, he was stronger than I am.”

Warden Glenn Turner testified that Terrell Toomes, the defendant’s twin brother, was
imprisoned on March 27, 2001, and at the time of trial was still incarcerated at the Hardeman County
Correctional Facility. He said that according to the prison’s records, Terrell Toomes did not leave
the facility for any reason and was in prison on March 28, 2003, the day the crime was committed.

Ripley Police Investigator Terry Jordan testified that he responded to the robbery call
received from the victim, talked with the victim and her sister, and then left the scene to meet with
Officer Drake who had reported seeing a person fitting the description of the robbery suspect. He
said he subsequently constructed a photograph array which contained photographs of both Toomes
brothers. He said that he had known the Toomes brothers for ten years and that they looked alike.

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He said he located the defendant about one week later and asked him to come to the police
department to talk with him. He said the defendant agreed to meet him but did not show up. He said
he searched for him for several weeks but was unable to find him. He said he learned during the
investigation that the defendant’s twin brother was incarcerated at the time of the crime. He said the
victim and her sister attended one of the general sessions court hearings related to the case. He said
they motioned to him when they exited the courtroom and informed him that the man who snatched
the purse was inside the courtroom. He said they identified the defendant as the robber.

On cross-examination, Investigator Jordan identified the photographs he had shown the
victim and her sister. He admitted that neither woman was able to identify the perpetrator positively
from the photographs. He explained that one of them said the robber looked like the man in
photograph three, that the other said he looked like the man in number three and number five, but
that neither woman was one hundred percent certain that the robber was the man in either
photograph. He acknowledged that the man in photograph three was Terrell Toomes and that the
defendant was the man in photograph six. He did not recall the name of the man in photograph five.
He said he attempted to locate this man but was unsuccessful. He acknowledged that the defendant’s
photograph was not selected by the victim or her sister and that he did not send the victim’s purse
or its contents to the crime lab for fingerprint analysis.

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence was insufficient to prove beyond a reasonable
doubt that he was the person who committed the robbery. The state contends that the evidence is
sufficient. We agree with the state.

Our standard of review when the defendant questions the sufficiency of the evidence on
appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not re-weigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

Robbery is the “intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” T.C.A. § 39-13-401. Viewing the evidence presented at trial
in the light most favorable to the prosecution, we conclude that a rational juror could have found
beyond a reasonable doubt that the defendant was guilty of robbery. The two eyewitnesses identified
the defendant as the man who grabbed the victim’s purse off Ms. Russell’s arm. He fled, but within
a matter of minutes, Officer Drake saw the defendant in the direction the suspect was reported to
have run. Although he was not apprehended that day, the purse and its contents were recovered in
the area between where the defendant was seen and where the crime was committed. The defendant
is not entitled to relief on this issue.

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 II. MOTION TO SUPPRESS

The defendant contends that the trial court erred by denying his motion to suppress evidence
relating to the photographs and by allowing the subsequent in-court identification of the defendant.
He asserts that the pretrial confrontation was invalid and the use of this evidence caused an
irreparable misidentification in his case which violated his constitutional rights to due process under
the Fifth and Fourteenth Amendments to the U.S. Constitution. The state responds the trial court
found that the evidence relating to the photographs did not create the likelihood of an irreparable
misidentification and that the jury would determine whether identification was proven. The state
asserts that the evidence does not preponderate against the trial court’s ruling.

At the suppression hearing, the victim testified that a week or two after the robbery,
Investigator Jordan brought photographs for her and Ms. Rudd to examine at her home. She denied
that he pointed to any specific person and explained that he merely handed them photographs to look
at to see if they recognized the person who took the purse. She said she believed the man in
photograph number five was the robber.

On cross-examination, defense counsel asked the victim if she was testifying that the person
in photograph number five took her purse, and she responded, “I think that is, uh-huh.” Counsel then
identified the man in photograph number five as Chris Taylor. The victim said that her eyes had
been dilated earlier the day of the robbery but that they were normal by the time they returned home.
She repeated her belief that the man in photograph number five took her purse. During redirect
examination, she said she saw the perpetrator at a hearing in general sessions court. She said that
she alerted Investigator Jordan and that the man she saw that day was the defendant.

Martha Rudd testified that Investigator Jordan brought photographs for her and the victim
to view and that they looked at them together. She recalled that she selected number three and
initially said that she did not see that person in the courtroom. On cross-examination, she was asked
again about the person in photograph three and she said, “Yeah, I see him now.” She said that the
defendant was facing her and the victim during their conversation and that she saw him for
approximately five minutes. She said that she and her sister picked the same photograph, number
three, but did not recall whether they discussed the decision with each other. She estimated that they
examined the photographs for thirty minutes. When reminded that the victim had selected number
five, she said that her sister was “mixed up.” She said she believed the defendant was the man in
photograph number three. She said Investigator Jordan made no suggestions while they studied the
photographs.

Officer Jimmy Drake testified essentially the same in all relevant respects as his trial
testimony, except that at the hearing he said he was one hundred to one hundred fifty feet from the
defendant when he identified him on Elm Street. At the trial, he estimated the distance to be fifty
to seventy-five feet.

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 Investigator Jordan testified that the victim and her sister looked at the photographs for about
ten minutes and that neither woman picked the defendant’s photograph. He said he showed the
victim and her sister the photographs approximately one week after the robbery. He said he did not
make any indications or any suggestions to them while they viewed the photographs. The remainder
of Investigator Jordan’s testimony was essentially the same as his trial testimony.

Regarding whether the photograph identification was unduly suggestive, the trial court found
that the two witnesses in this case had an opportunity to view the perpetrator during his commission
of the crime, that they both testified concerning their degree of attention, and that they were able to
give a description that was accurate with regard to physical description and the clothing worn by the
suspect. The trial court concluded that the photograph viewing was not unduly suggestive, even
though it was a “little bit different than normal, because neither victim identified the defendant.”
In any event, the trial court found no reason to suppress the evidence and concluded that
identification of the defendant would be an issue for the jury. The trial court also found no reason
to suppress the witness’ identification of the defendant during the hearing in general sessions court.
It noted that the state played no part in setting up the identification and that the witnesses merely
observed the defendant in the courtroom, believed he was the man who robbed the victim, and told
a police officer about it.

A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the
evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v.
Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the “credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are
matters entrusted to the trial judge as the trier of fact.” Odom, 928 S.W.2d at 23. The prevailing
party is entitled to the strongest legitimate view of the evidence and all reasonable inferences drawn
from that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The application of the law
to the facts as determined by the trial court is a question of law which is reviewed de novo on appeal.
State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

In Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967 (1968), the Supreme Court
discussed the potential hazards of an identification procedure involving photographs as opposed to
a lineup. However, the court also recognized the use of photographs as an effective procedure “from
the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of
arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.” Simmons, 390
U.S. at 384, 88 S. Ct. at 971. It concluded that “convictions based on eyewitness identification at
trial following a pretrial identification by photograph will be set aside on that ground only if the
photographic identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.” Id.; see, e.g., Sloan v. State, 584 S.W.2d 461
(Tenn. Crim. App. 1978). The Court in Simmons noted that the potential for misidentification is
increased when one photograph is “in some way emphasized” or “if the police indicate to the witness
that they have other evidence that one of the persons pictured committed the crime.” 390 U.S. at
383, 88 S. Ct. at 971. Thus, “a photographic identification is admissible unless, based upon the
totality of the circumstances, ‘the confrontation conducted . . . was so unnecessarily suggestive and

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conducive to irreparable mistaken identification that [the accused] was denied due process of law.’”
State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998) (quoting Stovall v. Denno, 388 U.S. 293, 301-302,
87 S. Ct. 1967, 1972 (1967)).

We first note that the photograph array was not impermissibly suggestive. No photograph
was markedly different from any other or in some way emphasized. Investigator Jordan testified he
did not make any indications or suggestions to the victim or her sister while they viewed the
photographs. The victim testified that Investigator Jordan did not point to any suspects during their
review of the photographs, and her sister testified that he did not make any suggestions.

In arguing that the photograph identification was unreliable and should have been suppressed,
the defendant points to the fact that neither the victim nor her sister identified the defendant from
the photographs. The defendant contends that allowing the photograph evidence and subsequent in-
court identification violated due process under the factors set forth in Neil v. Biggers, 409 U.S. 188,
93 S. Ct. 375 (1972). In Biggers, the United States Supreme Court set forth five factors to consider
in evaluating the likelihood of misidentification following a suggestive lineup procedure: (1) the
opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of
attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty
demonstrated by the witness at the confrontation, and (5) the length of time between the crime and
the confrontation. 409 U.S. at 200, 93 S. Ct. at 382. The court must consider the “totality of the
circumstances” in determining whether the identification was reliable. Id. We have concluded that
the photographic lineup in this case was not impermissibly suggestive. In any event, the Court stated
that unnecessary suggestiveness alone does not require the exclusion of evidence. Id. It observed
that “the primary evil to be avoided is ‘a very substantial likelihood of irreparable
misidentification.’” Id. at 199, 93 S. Ct. at 381 (quoting Simmons, 390 U.S at 384, 88 S. Ct. at 971);
see also State v. Philpott, 882 S.W.2d 394, 400 (Tenn. Crim. App. 1993). Therefore, we consider
the factors set forth in Biggers.

With respect to the first factor, both witnesses had sufficient opportunity to view the man
who took the purse. Although the victim had been to the eye doctor and had her eyes dilated earlier
that day, she testified that her vision had returned to normal by the time they arrived home and that
she was face to face with the defendant. Ms. Rudd testified that she required glasses only for reading
and that the garage was equipped with a light that went on automatically when the door opened. She
said she also saw the defendant face to face and for approximately five minutes.

The second factor, the witness’ degree of attention at the time of the crime, also weighs in
favor of finding the in-court identification reliable. The defendant surprised the women by appearing
at the door of their car as they pulled into their garage and asked them numerous questions, which
they answered while talking with him face to face.

Regarding the third factor, we note that the witness’ description of the robbery suspect, an
African-American male, slender build, five feet four inches to five feet six inches tall, and wearing

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a grey jogging suit, was sufficiently detailed and accurate. Officer Drake testified that he saw the
defendant who met the description approximately one minute after receiving the description.

Regarding the fourth factor, the certainty of the witnesses at the confrontation, we recognize
that eyewitness identification is fallible. See State v. Dyle, 899 S.W.2d 607, 612 (Tenn. 1995). In
this case, neither witness was able to pick the defendant from the photographs. Although both
witnesses selected a photograph of the defendant’s twin brother from the array presented to them,
the victim selected the defendant’s brother as merely one of two possibilities. We note that both
witnesses told Investigator Jordan that they had identified the man who snatched the victim’s purse
during a hearing in general sessions court in September 2003. Although the vagaries of eyewitness
testimony are substantial, the credibility of witnesses is an issue for the jury. After hearing evidence
of the witnesses’ inability to pick the defendant from the photographs, the jury ultimately resolved
the identification issue in favor of the state.

With respect to the fifth factor, the length of time between the crime and confrontation, the
record reflects that both witnesses viewed the photographs approximately one week after the robbery.
This factor warrants little weight, however, because neither witness made a positive identification
of the defendant at that time.

Considering the factors provided in Biggers and the totality of the circumstances, we
conclude that admitting the evidence relating to the photographs did not give rise to a substantial
likelihood of irreparable misidentification. We also believe that the in-court identification was
sufficiently reliable for due process purposes. The witnesses’ opportunity to view the perpetrator,
degree of attention, and accurate description outweigh the fact that they did not select the defendant
while viewing the photographs. As previously noted, both witnesses picked a photograph of the
defendant’s twin brother, although the victim chose him as one of two possibilities, and both
positively identified the defendant when they saw him in general sessions court. The defendant’s
right to due process was not violated.

III. SENTENCING

The defendant contends that the trial court erred by applying enhancement factors that were
improper given the facts of the case. He asserts that his sentence is excessive and that the trial court
erred by violating the principles set forth in T.C.A. § 40-35-103. The state contends that the trial
court properly sentenced the defendant. We agree with the state.

At the sentencing hearing, Darrell Smothers testified that he prepared the defendant’s
presentence report. He said he interviewed the victim who informed him that the robbery was a
traumatic event for her and that she had suffered from health problems related to the incident. He
said that his investigation revealed the defendant had a conviction for attempted aggravated burglary
on March 22, 2002, for which he was sentenced to thirty months on probation. He said the probation
was revoked on September 16, 2003, and at that time the defendant was serving the remainder of the
sentence in the Department of Correction. He said the defendant’s criminal record also contained

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convictions for casual exchange of marijuana in May 2001, facilitation of aggravated burglary in
January 2003, and criminal trespass in August 2003. Investigator Jordan testified that during his
investigation of the robbery, he learned the defendant had fled to Tipton County and was incarcerated
for approximately forty days on a criminal trespass charge, which had been reduced from a charge
of automobile burglary.

After hearing the witnesses’ testimony and considering the presentence report, the trial court
addressed the enhancement factors listed in T.C.A. § 40-35-114 and applied factor (2), that the
defendant had a previous history of criminal convictions, based on the defendant’s two prior felony
convictions and the two prior misdemeanor convictions; (5), that the victim was particularly
vulnerable because of age; (9), that the defendant had a previous history of unwillingness to comply
with conditions of sentencing involving release into the community, based on proof of probation
violations in both Circuit and Juvenile courts; (14), that the defendant committed the instant felony
while on probation; and (21), that the defendant was adjudicated to have committed a delinquent act
or acts as a juvenile that would constitute a felony if committed by an adult, i.e., burglary and
aggravated burglary. In mitigation, the trial court found that the defendant’s criminal conduct neither
caused nor threatened serious bodily harm. T.C.A. § 40-35-113(1). Based upon the existence of
these enhancement and mitigating factors, the trial court sentenced the defendant to serve five years.
The trial court also ordered that the sentence run consecutively to the previously imposed sentence
he was serving for attempted aggravated burglary because of the defendant’s extensive record of
criminal activity and the fact that he committed the robbery while on probation. T.C.A. § 40-35-
115(2), (6).

Appellate review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. T.C.A. § 40-35-401(d). As the Sentencing Commission
Comments to this section note, the burden is now on the appealing party to show that the sentencing
is improper. This means that if the trial court followed the statutory sentencing procedure, made
findings of fact that are adequately supported in the record, and gave due consideration and proper
weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act,
we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of correctness which accompanies the trial court’s action is
conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). In this respect, for the purpose of meaningful appellate review,

the trial court must place on the record its reasons for arriving at the
final sentencing decision, identify the mitigating and enhancement
factors found, state the specific facts supporting each enhancement
factor found, and articulate how the mitigating and enhancement
factors have been evaluated and balanced in determining the sentence.
T.C.A. § 40-35-210(f) (1990).

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State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

Also, 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. T.C.A. §§ 40-35-102, -103,
-210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

The range of punishment for a Range I defendant is not less than three nor more than six
years for a Class C felony. T.C.A. § 40-35-112(a)(3). Unless there are enhancement factors present,
the presumptive sentence to be imposed is the minimum sentence in the range. T.C.A. §
40-35-210(c). Our sentencing act provides that procedurally, the trial court is to increase the
sentence within the range based on the existence of enhancement factors and, then, reduce the
sentence as appropriate for any mitigating factors. T.C.A. § 40-35-210(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.

Initially, we note the trial court complied with the purposes, principles, and procedures of the
1989 Sentencing Act. Therefore, we review the defendant’s sentence de novo with a presumption
of correctness. The defendant argues that the trial court ignored the purposes and principles set forth
in T.C.A. § 40-35-103 and the Sentencing Reform Act when it imposed his sentence and that his
sentence is far greater than he deserves given the offense committed. However, he presents no facts
or legal authority to demonstrate how the trial court erred. Our review of the record fails to show
that the trial court erred or that it’s application of the five statutory enhancement factors was not
properly supported by the evidence. We conclude that the defendant’s sentence is proper.

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

___________________________________
JOSEPH M. TIPTON, JUDGE

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