State of Tennessee v. Omar Biviano

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 3, 2013

STATE OF TENNESSEE v. OMAR BIVIANO

Appeal from the Criminal Court for Shelby County
No. 11-03674 Lee V. Coffee, Judge

No. W2012-02184-CCA-R3-CD - Filed January 16, 2014

A jury convicted Omar Biviano (“the Defendant”) of one count of aggravated robbery, one
count of carjacking, and one count of facilitation of employing a firearm during the
commission of a dangerous felony. After a hearing, the trial court sentenced the Defendant
as a Range I offender to an effective term of twelve years’ confinement. In this direct appeal,
the Defendant contends that the evidence was not sufficient to support his convictions and
that his sentence is excessive. Upon our thorough review of the record and 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 EFFREY S. B IVINS, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

Lauren Pasley-Ward, Memphis, Tennessee, for the appellant, Omar Biviano.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Colin Campbell, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

The Defendant was charged in June 2011 with one count of aggravated robbery, one
count of carjacking by force or intimidation, and one count of employing a firearm during
the commission of a dangerous felony. Charged with the Defendant were Edwin Melgar and
Eric Garza. At the Defendant’s jury trial, conducted in June 2012, the following proof was
adduced:1

Edwin Melgar, eighteen at the time of trial, testified that he was hoping to improve
the disposition of the charges against him by testifying. He described Eric Garza as a
“friend.” He also described the Defendant as a “friend” and stated that, as of January 2011,
he had known the Defendant for about a year.

On January 10, 2011, when Melgar was seventeen years old, the Defendant picked
him up in a white Expedition SUV at about 6:00 p.m. or 7:00 p.m. Already in the car were
three other males, whom Melgar identified as Garza, “Diego,” and “Daniel.” Melgar was
seated in the middle of the backseat. The men rode around for a while, and Melgar requested
to be taken home. The other men told Melgar that they were “going to do a jale.” Melgar
explained that jale was a Spanish word, and it meant a “job.” Asked what kind of job the
men were referring to, Melgar stated, “They were going to go look for somebody to rob.”

The Defendant drove them to a part of town with which Melgar was unfamiliar. After
about ten more minutes of driving around, “they saw somebody outside in the street with a
car.” Melgar stated that there were two “[m]id age” Hispanic males sitting in the car, a blue
Honda. Garza and Daniel said, “Let’s get this one,” and the SUV halted. Garza and Daniel
got out of the SUV and approached the Honda. Garza and Daniel were each armed with a
gun. Garza and Daniel put their guns in the faces of the men in the Honda and told them to
get out of the car and hand over their wallets. Garza and Daniel were speaking Spanish to
the men in the car. The men got out of the Honda and handed over their wallets and the car
keys. Garza and Daniel got into the Honda and drove off. During the carjacking, according
to Melgar, the Defendant “got out and said, ‘Hurry up’” in Spanish.

After Garza and Daniel drove off, the Defendant drove Melgar and the remaining
passenger to “Dopey’s” house. Melgar received forty dollars from the robbery.

Shown a photograph with a person circled, Melgar identified the circled person as the
Defendant.

On cross-examination, Melgar stated that he decided to become a witness for the State
about ten days before trial “because it seemed better for [him] to do that.” He stated that the
State had not made him any promises, but he was hoping for a “better disposition” of his
case. He acknowledged that one of the victims had identified him in person at a hearing in

1
Only the Defendant was on trial.

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February 2011 as looking like the driver of the SUV. He admitted that he did not object
when the other people in the SUV said they wanted to do a “jale.” He stated that Daniel and
Diego were next to him in the backseat of the SUV. The Defendant was driving, and Garza
was in the front passenger seat. The SUV pulled up perpendicular to the passenger side of
the Honda with the SUV’s driver’s door close to the Honda’s passenger door. Garza got out
and went to the driver’s side of the Honda. Daniel went to the passenger side of the Honda.
Melgar could see the faces of the men in the Honda. He said that the men in the Honda could
not see him because the SUV’s windows were tinted.

When Melgar got to Dopey’s house, he saw “maybe three” other people there. He
asked a female there to give him a ride home, which she did. Melgar returned to Dopey’s
house the next day, where he was arrested. There were “[a]bout ten” people there at the time,
including the Defendant, Garza, Daniel, and Diego. At the time of his arrest, Melgar was
playing Xbox. The other people were smoking marijuana, but he was not. When the police
arrived, they knocked on the door. At that point, Melgar testified, “[e]verybody started trying
to run and hide stuff.” When the police officers came in, Melgar was sitting on the sofa. The
officers arrested him because, he thought, of “the marijuana smoke thing.” After he was
taken to the police station, and after his mother arrived, they began asking him about the
robbery. He decided to tell them about it because “[t]hat’s something big.”

On redirect examination, Melgar stated that he did not get out of the SUV during the
carjacking.

Jose Gomez, twenty-nine years old at the time of trial, testified2 that he and his long-
time friend, Abigael Esqueda, were robbed outside Gomez’s house on January 10, 2011. It
was between 6:00 p.m. and 8:00 p.m. The robbery occurred near the parking lot of his
residence. The street lighting was working. He was in the passenger seat of a blue Honda
when a man approached him and aimed a pistol at him. Gomez got out of the car, afraid he
was going to die. Esqueda was in the driver’s seat. The gunman asked for Gomez’s bag, and
Gomez gave it to him. There was $600 cash in the bag. Gomez asked for his identifications,
and the gunman took them and threw them on the ground. Gomez and the gunman were
speaking Spanish. Gomez also gave the gunman his cell phone. Gomez later recovered his
cell phone.

While Gomez was being accosted, another gunman was “doing the same” to Esqueda.
After Esqueda also got out of the car, the two gunmen took the car. The gunmen came from
a white Ford Expedition. Gomez could see another person in the Ford “by the steering
wheel” but could not see anyone else. He said the Ford was two to two-and-a-half meters

2
Gomez, who spoke Spanish, testified through an interpreter.

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from the Honda. He did not see the driver of the Ford get out. He heard a voice from the
Ford tell the gunmen to hurry up. The voice came from the Ford’s driver’s side. Gomez
added, “he sort of stuck his head out a little bit, but I didn’t really get a good look.” Gomez
was “concentrating on the one who was aiming a pistol at [him].” Gomez stated that the man
stuck his head out from the driver’s seat.

Gomez stated that the men who robbed him and Esqueda were covering their faces,
one with a dark bandana and the other with a combination of his hood and his hand.

Four or five days later, Gomez was shown some photographic line-ups, and he pointed
someone out. However, he was not one hundred percent sure of his identification. On that
same day, Gomez’s cell phone was returned to him. He later discovered videos on it. The
videos had not been on the phone prior to the robbery, and he did not recognize anyone in
the videos. When he showed the videos to Esqueda, Esqueda recognized someone. After
he and Esqueda viewed the video, Gomez turned the phone back over to the police. When
shown the photograph that previously had been shown to Melgar, and which Melgar testified
depicted the Defendant with a circle drawn around him, Gomez testified that the photograph
was from the video. Gomez testified that he did not recognize the person who was circled
and that Esqueda drew the circle around the person.

On cross-examination, Gomez explained that he identified “G-4” from the photo
spreads as the man that held the gun on him, but he was not certain of his identification. He
was not able to identify the driver of the SUV. He stated that the driver’s window of the
SUV was rolled down.

Abigael Esqueda, twenty-three years old at the time of trial, testified 3 that he and
Gomez had been friends before coming to this country from Mexico. He stated that, on
January 10, 2011, at approximately 8:00 p.m., he was robbed near a friend’s house. Gomez
was with him at the time. Esqueda was sitting in the driver’s seat of his Honda, and Gomez
was sitting in the passenger seat. A white Expedition pulled up, “catty-corner.” Two men
got out of the Expedition and approached the Honda, waving pistols. The men spoke
Spanish to them. Esqueda testified, “[W]hen they had pointed the pistols at us, we got our
wallets out and he got my cell phone and took my car.” Esqueda stated that he was “scared.”
The episode lasted about four minutes. The two assailants got in the Honda and left.
According to Esqueda, the driver of the Expedition never got out of that vehicle. Esqueda
heard the driver say, “they needed to hurry up, they needed to move it.”

3
Esqueda, who spoke Spanish, testified through an interpreter.

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 Esqueda reviewed photographs with the police on January 13, 2011. He identified the
photograph marked C-5 and indicated on the Advice to Witness Viewing Photographic
Display that the individual was involved in the crime. Esqueda identified at trial the
photographic array that he viewed with the police and on which he circled the photograph
labeled C-5. Underneath the circled photograph, Esqueda wrote “this is the one I thought
I recognized when he was driving.” The page containing the photograph labeled C-5 was
admitted as Exhibit 2. Later testimony by another witness established that C-5 was a
photograph of Melgar. Asked why he circled the photograph, Esqueda responded, “I thought
I recognized it while he was driving, but they – but I really wasn’t positive. Didn’t have that
much chance.”

Esqueda also identified at trial the still photograph captured from the video discovered
on Gomez’s phone. Esqueda explained that, after Gomez retrieved his cell phone from the
police, Esqueda looked at the videos on it. He testified that, after seeing the videos, he
thought “that he was the one who was driving by – on account of his coat.” On January 17,
2011, he circled a person wearing a light-colored hooded jacket depicted in the still
photograph and wrote, “This person is the one who was driving when they stole the white
Expedition [sic] and shouted to them to move it and get the money.” This photograph was
admitted as Exhibit 3. Asked to explain why he identified two different persons as the driver
of the Expedition, Esqueda responded, “On account of the coat that he was wearing when we
saw him.”

On cross-examination, Esqueda acknowledged having testified at the juvenile court
hearing. There, he identified Melgar in person as the driver of the SUV. He acknowledged
having identified Melgar twice as the driver of the Expedition. Asked, “So would it be fair
to say, Mr. Esqueda, that you don’t know who was the driver of the car?”, Esqueda
responded, “Well, it seems to me that it was more the one that – it seems to me more that he
was the one in the large photo.”4 When defense counsel then referred to the Defendant’s
image in Exhibit 3 and asked again about the basis of Esqueda’s identification of the
Defendant as the driver, Esqueda responded that it was “because of the coat.”

On redirect examination, the writing on Exhibit 3, which Esqueda wrote in Spanish,
was translated as, “This person is the one who was driving when they robbed – was driving
the Expe – the white Expedition when they robbed me. And he was shouting that – that they

4
Exhibit 2, on which Esqueda circled the photograph labeled C-5, is a letter-sized page containing
six photographs. Exhibit 3, on which Esqueda circled a photograph of the Defendant, is a letter-sized page.
Thus, the record indicates that the “little photograph” was the one contained in Exhibit 2 and that the “large
photo” was Exhibit 3.

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take our money – that they take our money from us.” Additionally, the following colloquy
transpired:

Q. Do you recall being in Court about ten days or two weeks ago for a hearing
with the same lawyers and the same judge? 5

A. Yes.

Q. Do you recall making a statement in regard to this picture [Exhibit 3], that
this looks like the driver but you can’t be a hundred percent (100%) positive?
Do you recall making that statement?

...

A. Yes.

Q. Two weeks ago, you even pointed to somebody in the Courtroom; do you
remember doing that?

A. Yes.

Q. Who did you point to?

A. To the one sitting there – seated there.

Q. Why?

A. Because of the – because of the forehead here a little bit because of his
skin, like the one who robbed me.

The transcript of the suppression hearing indicates that, there, Esqueda identified the
Defendant when asked if he recognized anybody that day that robbed him. Thus, the record
before this Court indicates that, at trial, Esqueda was indicating the Defendant as “the one
sitting there – seated there.” 6

5
The record reflects that a motion to suppress hearing was held on May 30, 2012, at which Esqueda
testified about the photograph admitted as Exhibit 3 at trial.
6
The Defendant also indicates in his brief that Esqueda identified him at trial “because of the
forehead here a little bit because of his skin, like the one who robbed [him].”

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 Officer Daniel Washington of the Memphis Police Department (“MPD”) located the
blue Honda on January 11, 2011, at an apartment complex. He had it towed to the city lot
for processing. Officer Christopher Slaughter of the MPD processed the blue Honda and
collected “quite a few” sets of fingerprints.

Officer Brian Beasley of the MPD testified that he was the case officer assigned to
this matter. A call made on one of the stolen cell phones led officers to an address on
Monaco. At least ten officers responded at about 8:00 p.m. on January 11, 2011. When they
arrived, Officer Beasley knocked on the front door. Someone looked out the window and
there was then “a lot of commotion on the interior of the house.” A man identifying himself
as Alonzo Corona answered the door, and “when he exited the house, he was accompanied
by a – a large plume of marijuana smoke.” At that, Officer Beasley detained Mr. Corona,
entered the house, and detained all of the occupants. The officers “arrested everybody.”
Officer Beasley clarified that they arrested ten persons, nine of them Hispanic males who
matched the general description of the men involved in the carjacking, including the
Defendant. A search warrant subsequently was obtained for the house.

As Officer Beasley was looking through the house for other suspects, he “looked into
a closet and there was a cell phone that matched the description of the cell phone that was
taken from Mr. Esqueda.” Officer Beasley asked another officer to call Esqueda’s number,
and the cell phone that Officer Beasley found rang.

Of the nine males arrested, three were charged with the instant crimes, including
Melgar because “[h]e confessed, and later he was picked out of a photo identification.”
Garza also confessed and was charged.

Initially, the Defendant was transported to juvenile court for the drug charges. He was
later implicated by Melgar and Garza as participating in the carjacking.

On January 14, 2011, Gomez and Esqueda came to the police station and provided
statements. They also were shown photographic arrays. At that time, Gomez “made one
misidentification of just a random filler picture that was not one of the persons implicated
in the robbery.” This “filler picture” was labeled “G-4.” Officer Beasley testified that
Esqueda looked at a total of fifty-four photographs. Esqueda circled only one of the
photographs, a photograph of Melgar. Officer Beasley added that Melgar was one of the ten
persons arrested at the residence on Monaco.

Officer Beasley returned the cell phones that had been recovered at the house on
Monaco to the victims. Later, a friend of the victims called him and told him “that there was
a video that had been taken on Gomez’s cell phone, and on that cell phone was a video of the
person that Esqueda said robbed him.” Officer Beasley obtained the cell phone, watched the

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video, and printed off some still photographs from it. On January 17, he showed the still
photographs to the victims, “and Esqueda circled the person and said, ‘This is who I’m
talking about. This is one of the persons that robbed me.’”

Officer Beasley explained that he requested the blue Honda to be dusted for
fingerprints, and he stated that prints were collected. None of the prints matched the
Defendant.

On cross-examination, Officer Beasley acknowledged that neither he nor any of his
officers interviewed the Defendant before the Defendant was transported to juvenile court
or thereafter. Officer Beasley also stated that he recognized the Defendant when he viewed
the video taken with Gomez’s phone. After Esqueda watched the video and identified the
Defendant as one of the participants in the robbery, Officer Beasley determined that there
was sufficient evidence to charge the Defendant with the instant crimes.

Officer Beasley acknowledged that the Defendant’s photograph was in the photo
arrays shown to the victims on January 13 and that neither of the victims identified that
photograph.

In response to a question posed by the jury and asked by the trial court, Officer
Beasley testified that there was no physical evidence recovered from the Honda that was
linked to the Defendant or the codefendants.

Officer Lee Walker of the MPD responded to the residence on Monaco during the
early morning hours of January 12, 2011, “to photograph and collect evidence on a warrant.”
There, he recovered a nine-millimeter pistol and magazine from a bed cover in one of the
bedrooms. He also recovered a SIG forty caliber handgun and magazine from a recliner chair
in the back bedroom. He also collected a bullet-proof vest from a closet in one of the
bedrooms.

The State rested its case, and the defense presented no proof. After deliberating, the
jury convicted the Defendant of aggravated robbery, carjacking by force or intimidation, and
facilitation of employment of a firearm during the commission of carjacking. After a
sentencing hearing, the trial court sentenced the Defendant as a Range I offender to twelve
years for the aggravated robbery, twelve years for the carjacking, and four years for the
firearm offense, all to be served concurrently in the Tennessee Department of Correction, for
an effective sentence of twelve years’ incarceration. In this direct appeal, the Defendant
contends that the evidence was not sufficient to support his convictions and that his sentence
is excessive.

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 Analysis

Sufficiency of the Evidence

Our standard of review regarding sufficiency of the evidence 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 (1979); see also Tenn. R. App. P. 13(e). After a jury finds a
defendant guilty, the presumption of innocence is removed and replaced with a presumption
of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant
has the burden on appeal of demonstrating why the evidence was insufficient to support the
jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate court does
not weigh the evidence anew; rather, “a jury verdict, approved by the trial judge, accredits
the testimony of the witnesses for the State and resolves all conflicts” in the testimony and
all reasonably drawn inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75
(Tenn. 1992). Thus, “the State is entitled to the strongest legitimate view of the evidence
and all reasonable or legitimate inferences which may be drawn therefrom.” Id. (citation
omitted). This standard of review applies to guilty verdicts based upon direct or
circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State
v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our Supreme Court adopted
the United States Supreme Court standard that “direct and circumstantial evidence should be
treated the same when weighing the sufficiency of such evidence.” Id. at 381. Accordingly,
the evidence need not exclude every other reasonable hypothesis except that of the
defendant’s guilt, provided the defendant’s guilt is established beyond a reasonable doubt.
Id.

As set forth above, the Defendant was convicted of aggravated robbery, carjacking
by force or intimidation, and facilitation of employing a firearm during the commission of
a felony. As charged in this case, aggravated robbery is “the intentional or knowing theft of
property from the person of another by violence or putting the person in fear,” Tenn. Code
Ann. § 39-13-401(a) (2010), “[a]ccomplished with a deadly weapon.” Id. § 39-13-402(a)(1)
(2010). Carjacking “is the intentional or knowing taking of a motor vehicle from the
possession of another by use of . . . [f]orce or intimidation.” Id. § 39-13-404(a)(2) (2010).
As to the third offense, “[i]t is an offense to employ a firearm during the . . . [c]ommission
of a dangerous felony.” Id. § 39-17-1324(b)(1) (2010). Carjacking is a “dangerous felony.”
Id. § 39-17-1324(i)(1)(D).

Additionally, “[a] person is criminally responsible for an offense committed by the
conduct of another, if: . . . [a]cting with intent to promote or assist the commission of the
offense, or to benefit in the proceeds or results of the offense, the person solicits, directs,
aids, or attempts to aid another person to commit the offense.” Id. § 39-11-402(2) (2010).

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“A person is criminally responsible for the facilitation of a felony, if, knowing that another
intends to commit a specific felony, but without the intent required for criminal responsibility
under [Tennessee Code Annotated] section 39-11-402(2), the person knowingly furnishes
substantial assistance in the commission of the felony.” Id. § 39-11-403(a) (2010).

The Defendant does not contend that the State failed to prove one or more of the
elements constituting these crimes. Rather, he contends that the evidence was not sufficient
to establish his identity as one of the perpetrators of the crimes committed against the
victims. The State disagrees.

Melgar testified that the Defendant drove the Expedition in a quest to find potential
robbery victims. When two of the Defendant’s cohorts saw the victims and said, “let’s get
this one,” the Defendant drove the Expedition up to the blue Honda and stopped. Garza and
Daniel got out, accosted the two victims with handguns, and demanded the victims’ wallets
and car keys. When the Defendant perceived that events were not proceeding swiftly
enough, he yelled at Garza and Daniel to hurry up. The Defendant waited until Garza and
Daniel completed the robbery and carjacking and drove off in the Honda before he drove
away from the scene.

Melgar’s testimony about the Defendant’s participation in the aggravated robbery and
carjacking unequivocally identified the Defendant as a perpetrator. However, Melgar was
also charged with these crimes. In Tennessee, a defendant cannot be convicted solely on the
uncorroborated testimony of an accomplice. State v. Shaw, 37 S.W.3d 900, 903 (Tenn.
2001) (citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 379
S.W.2d 34, 43 (Tenn. 1964)). Rather,

[T]here must be some fact testified to, entirely independent of the
accomplice’s testimony, which, taken by itself, leads to the inference, not only
that a crime has been committed, but also that the defendant is implicated in
it; and this independent corroborative testimony must also include some fact
establishing the defendant’s identity. This corroborative evidence may be
direct or entirely circumstantial, and it need not be adequate, in and of itself,
to support a conviction; it is sufficient to meet the requirements of the rule if
it fairly and legitimately tends to connect the defendant with the commission
of the crime charged. It is not necessary that the corroboration extend to every
part of the accomplice’s evidence. The corroboration need not be conclusive,
but it is sufficient if this evidence, of itself, tends to connect the defendant with
the commission of the offense, although the evidence is slight and entitled,
when standing alone, to but little consideration.

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Bigbee, 885 S.W.2d at 803 (citations omitted). It is for the jury to determine whether
sufficient corroboration exists. Id.

We hold that there was sufficient corroborating evidence to support Melgar’s
identification of the Defendant as a participant in the instant crimes. Gomez testified that,
after his cell phone was stolen, it was returned to him containing a video that had not been
on it at the time it was stolen. When Gomez showed the video to Esqueda, Esqueda
recognized one of the people shown in the video as one of the perpetrators. Esqueda
subsequently identified the Defendant from a still photograph obtained from the video. At
trial, Esqueda maintained his earlier identifications of the Defendant. The proof at trial
established that Esqueda had a sufficient opportunity to see the Defendant during the crimes
because the SUV was pulled up to the Honda, the driver’s window was down, and there was
sufficient lighting to see.

We acknowledge that this proof was not overwhelming. However, “it need not be.”
Shaw, 37 S.W.3d at 903. The corroborating proof was sufficient to support the jury’s
determination that it fairly and legitimately tended to connect the Defendant with the
commission of the instant crimes. See id. The Defendant’s arguments about inconsistencies
in the evidence and Melgar’s self-interest go to the weight of the evidence, a matter entrusted
to the jury. See id. “Our role is simply to determine whether the evidence was sufficient to
corroborate the accomplice’s testimony and legally sufficient for any trier of fact to have
found the essential elements of the offense beyond a reasonable doubt.” Id. at 903-04. We
hold that it was. Accordingly, the Defendant is not entitled to relief from any of his
convictions on his claim of insufficient evidence.

Sentencing

After a sentencing hearing, the trial court determined that the Defendant was
seventeen years old at the time he committed the instant offenses and that he was a Range
I offender. The trial court applied as enhancement factors the Defendant’s previous history
of criminal convictions or behavior; that he was a leader in the commission of the offenses;
that he had earlier been adjudicated to have committed delinquent acts as a juvenile that
would have been felonies had he committed the acts as an adult; and, as to the carjacking
conviction, that he possessed or employed a firearm during the commission of that offense.
See Tenn. Code Ann. § 40-35-114(1), (2), (16), (9) (2010). In mitigation, the trial court gave
“some weight” to the fact that the Defendant “grew up in a household that was replete with
domestic violence; that he tried to help his mother when his mother was being beaten by his
father, and [that] he was in fact expelled from his house at the age of 12 while trying to help
his mother.” See id. § 40-35-113(13) (2010). After applying these enhancement and
mitigating factors, the trial court sentenced the Defendant to the maximum Range I sentence

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of twelve years for the aggravated robbery, a Class B felony;7 the maximum Range I sentence
of twelve years for the carjacking, a Class B felony;8 and the maximum Range I sentence of
four years for the facilitation of the firearm offense, a Class D felony.9 See id. § 40-35-
112(a)(2), (a)(4) (2010). The Defendant now complains that the trial court erred in applying
the first two of the four enhancement factors. The Defendant also contends that the trial
court erred in failing “to give proper weight to the mitigation.”

Prior to imposing sentence, a trial court is required to consider the following:

(1) The evidence, if any, received at the trial and the sentencing hearing;

(2) The presentence report;

(3) The principles of sentencing and arguments as to sentencing alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the mitigating and
enhancement factors set out in [Tennessee Code Annotated sections ] 40-35-
113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant’s own behalf
about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2010).

The referenced “principles of sentencing” include the following: “the imposition of
a sentence justly deserved in relation to the seriousness of the offense” and “[e]ncouraging
effective rehabilitation of those defendants, where reasonably feasible, by promoting the use
of alternative sentencing and correctional programs.” Tenn. Code Ann. § 40-35-102(1),
(3)(C) (2010). “The sentence imposed should be the least severe measure necessary to
achieve the purposes for which the sentence is imposed,” and “[t]he potential or lack of

7
Tenn. Code Ann. § 39-13-402(b).
8
Tenn. Code Ann. § 39-13-404(b).
9
Tenn. Code Ann. §§ 39-17-1324(h); 39-11-403(b).

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potential for the rehabilitation or treatment of the defendant should be considered in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(4),
(5) (2010).

Our Sentencing Act also mandates as follows:

In imposing a specific sentence within the range of punishment, the court shall
consider, but is not bound by, the following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement factors
set out in [Tennessee Code Annotated sections] 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

Additionally, a sentence including confinement should be based on the following
considerations:

(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of
the offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1).

When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). “[A] trial court’s misapplication of an enhancement or mitigating factor
does not remove the presumption of reasonableness from its sentencing decision.” Id. at

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709. This Court will uphold the trial court’s sentencing decision “so long as it is within the
appropriate range and the record demonstrates that the sentence is otherwise in compliance
with the purposes and principles listed by statute.” Id. at 709-10. Moreover, under those
circumstances, we may not disturb the sentence even if we had preferred a different result.
See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the sentence has
the burden of demonstrating its impropriety. Tenn. Code Ann. § 40-35-401 (2010), Sent’g
Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

As to the first challenged enhancement factor, the Defendant contends that his
juvenile record “cannot be used to prove a previous history of criminal convictions or
behavior.” We agree. Our supreme court has indicated that Tennessee Code Annotated
section 40-35-114(1) “appl[ies] only to adult criminal conduct.” State v. Jackson, 60 S.W.3d
738, 742 (Tenn. 2001). The trial court erred when it determined that enhancement factor (1)
could be applied to the Defendant’s sentences.

We do not agree that the trial court erred by considering the enhancement factor that
the Defendant was a leader in the commission of the offenses. The trial court had before it
sufficient proof from which to determine that the Defendant drove his cohorts around with
the goal of robbing someone; that he stopped when they spotted a target and pulled up to the
targeted vehicle; that he ordered his cohorts to “hurry up” during their commission of the
offenses; and that he waited until his cohorts were successful in the carjacking offense before
driving away from the scene. These circumstances support application of this enhancement
factor. See State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993) (“Our cases have
established that enhancement for being a leader in the commission of an offense does not
require that the defendant be the sole leader but only that he be ‘a’ leader.”) (citation
omitted).

As to the Defendant’s argument that the trial court failed to give “proper weight” to
the proof of mitigation, our standard of review set forth above makes clear that this is not a
basis upon which this Court may grant relief. Moreover, our conclusion that the trial court
erred in its application of enhancement factor (1) does not entitle the Defendant to relief. As
set forth above, “a trial court’s misapplication of an enhancement or mitigating factor does
not remove the presumption of reasonableness from its sentencing decision.” Bise, 380
S.W.3d at 709. Because the Defendant’s sentences are within the appropriate range, and
because the record demonstrates that the Defendant’s sentences are otherwise in compliance
with the purposes and principles set forth in the Sentencing Act, we affirm the Defendant’s
sentences. See id. at 709-10.

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 Conclusion

For the reasons set forth above, we affirm the Defendant’s convictions and sentences.

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JEFFREY S. BIVINS, JUDGE

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