State of Tennessee v. Gerald Stephen Cassell and Brian James Beckwith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 3, 2015

STATE OF TENNESSEE v. GERALD STEPHEN CASSELL AND BRIAN
JAMES BECKWITH

Appeal from the Circuit Court for Hardin County
No. 9649 C. Creed McGinley, Judge

No. W2013-02368-CCA-R3-CD - Filed May 22, 2015

The Defendant-Appellants, Gerald Stephen Cassell and Brian James Beckwith, were
jointly convicted by a Hardin County jury of one count of aggravated robbery, a Class B
felony. See T.C.A. § 39-13-402. The trial court ordered each Defendant to serve twelve
years in the Tennessee Department of Correction, consecutive to their unserved sentences
in Florida. In this consolidated appeal, the Defendants argue that the trial court erred in
denying their motion to suppress a witness‟s pretrial and trial identifications of them, the
evidence is insufficient to sustain their aggravated robbery conviction, and the trial court
erred in sentencing them. In addition, Cassell argues that the trial court erred in
admitting witness testimony regarding the contents of a WalMart surveillance video.
Upon review, we affirm the judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Guy T. Wilkinson (on appeal), District Public Defender, Camden, Tennessee; and
Benjamin S. Harmon (at trial), Savannah, Tennessee, for the Defendant-Appellant,
Gerald Stephen Cassell.

Joe L. Brown, Savannah, Tennessee, for the Defendant-Appellant, Brian James
Beckwith.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Hansel J. McCadams, District Attorney General; and Ed N. McDaniel, Assistant District
Attorney General, for the Appellee, State of Tennessee.
 OPINION

This appeal stems from the robbery of Livingston‟s Jewelry in Savannah,
Tennessee by two individuals on the afternoon of April 16, 2012. The Hardin County
Grand Jury jointly indicted Cassell and Beckwith after they were implicated in the
robbery. Prior to trial, both Defendants filed motions to suppress identification evidence
and to preclude eyewitness testimony regarding identification.

Suppression Hearing. William Bell testified that he was previously a police
officer in Maryland for about twenty-four years before retiring and moving to Hardin
County, Tennessee. On April 16, 2012, he and his eleven-year-old daughter were in
Livingston‟s Jewelry when an armed robbery occurred. He said that he “got a good look”
at one of the men whose face was uncovered when the man entered the store. Bell further
stated that he “got a very good look” at the other man who first entered the store with his
face covered up to the nose, but whose face was later uncovered when he left.

As the men were leaving, one man asked Bell and store owner Randy Livingston
for their car keys. Bell then obtained a handgun from Livingston and pursued the men.
Bell said that he recognized the men from the jewelry store but not because of
photographs that had been shown to him by the police. Bell stated that he observed the
two men as they entered the store, while they were in the store, and when they left. He
identified the Defendants as the men who had robbed the jewelry store.

During cross-examination by Cassell‟s attorney, Bell said that he was involved in
many robbery investigations while he was a police officer in Maryland. Prior to this
incident, he had been in Livingston‟s Jewelry once before. On the day of the robbery, he
and his daughter were in the back of the store near the cash register. Bell said that it was
immediately apparent that the men were robbing the store because the man with the
covered face had a gun in his hand and the other man had a bag. Bell said that the two
men were in the store for about five minutes, and he observed them the entire time. He
testified that he stared directly at both men because they kept ordering him to keep his
hands on his head.

On the day of the incident, Bell provided a statement to police and was shown
some photographs. He could not recall during the hearing whether he identified both
individuals from a photographic lineup on the day of the robbery or on the following day.
He agreed that the Savannah police showed him a still photograph from a Walmart
surveillance video of just the two suspects, but he was unsure whether he was shown that
picture before or after the photographic lineup. When he was shown the Walmart picture,
the police asked him if he could identify the men. The police did not tell him that the two
men in the photograph were the robbery suspects. He denied that he saw pictures of the
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Defendants on television or in the newspaper. Bell believed that both Defendants were
included in the same photographic lineup. He said he could identify the Defendants‟
faces, but he did not know their names.

During cross-examination by Beckwith‟s attorney, Bell said that he could see the
suspects through both his direct and peripheral vision. He stated that the unarmed man
approached him several times and told him to keep his hands on his head. He said that
the other man did not have his face covered with a shirt the entire time, and he observed
the man‟s face multiple times while the man was near the safe. Bell agreed that he had
identified pictures two and five from a lineup of six photographs with 100 percent
certainty. He testified that he did not pay attention to the background of the pictures in
the lineup.

After the State‟s proof, Cassell‟s attorney called Officer T.J. Barker, a twenty-one
year veteran of the Savannah Police Department. Officer Barker investigated the instant
robbery at Livingston‟s Jewelry, interviewed Bell and Livingston, and spoke to witnesses
who saw a small red car leave the scene. On April 17, he took a statement from Bell at
the police department, showed him surveillance photographs from WalMart, and asked
Bell if he recognized the two men. The police had obtained photographs from Walmart
because the robbery suspects left duct tape at the crime scene, and some duct tape had
been stolen from Walmart that day. These still photographs from Walmart were released
to the media and depicted the Defendants entering the store as well as their clothing and
vehicle.

Officer Barker acknowledged that Bell returned to the police station on April 23,
2012, to view a lineup of six photographs. He agreed that Bell had already viewed the
Walmart surveillance photographs of the two Defendants. Officer Barker compiled the
lineup based on the description of the robbery suspects, and he used photographs of men
with very short dark hair as well as men with light hair. While compiling the lineup, he
did not notice a difference between the backgrounds of the two suspects and the other
four men. Officer Barker thought the photographs were “pretty close,” and he advised
the witnesses that the lineup may or may not include photographs of the guilty parties.
He agreed that Bell identified only one suspect on the day of the robbery and then
identified both men the following day based on the Walmart photographs. He said that
the lineup consisted of color photographs.

Following the hearing, the trial court made oral findings and denied the motion to
suppress. The court concluded that the identification procedure was not unduly
suggestive and that the identification was reliable under the totality of the circumstances.

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 Trial. Randy Livingston testified that he had owned Livingston‟s Jewelry in
downtown Savannah, Tennessee for the past thirty-five years. On April 16, 2012, he was
estimating the cost of a ring repair for William Bell and Bell‟s minor daughter when two
men entered the store. The man who was armed with a gun said, “„This is a robbery.
Everybody on the floor.‟” After Bell and his daughter were on the ground, the unarmed
man began removing diamond jewelry from the floor cases, and the armed man
demanded that Livingston open the safe. Livingston complied and gave the man a money
clip with $200. The man also took some scrap gold from the safe and about $700 from
the cash register. The robbers continued to remove items from behind the jewelry
counters and placed them in a canvas tent bag. Livingston estimated that the men were in
the store for five minutes.

Livingston stated that he had never experienced a robbery at his business before
and that he had installed video surveillance after the incident. He cooperated with the
robbers because he was concerned for the safety of his customers. When the robbers left,
Bell identified himself as a retired police officer and asked for a firearm, which
Livingston gave him. Livingston immediately called the police as Bell chased after the
men. He said that Bell later returned with the robbers‟ bag. Livingston valued the
jewelry inside the bag to be worth almost $27,000. However, he never recovered any of
the cash or three bracelets valued at around $560. He identified the Defendants in court
as the men who, “[w]ithout a doubt,” robbed his store on April 16, 2012.

During cross-examination by Cassell‟s attorney, Livingston said that the robbers
produced “an automatic weapon” as soon as they entered the store. He did not believe
that the men wore gloves, though he stated that he paid more attention to the gun and to
their faces than to their clothing. He said that he was not on the floor for long because
the men ordered him to open the safe and the cash register. Livingston stated that the two
men had close-cropped hair and were about five feet and nine inches tall. He said that the
armed man was wearing a cap and had his T-shirt pulled up over his face, but his face
was only briefly covered. The unarmed man was wearing sunglasses. He testified that
he “got a very good look at them.” Livingston agreed that he provided a police statement
on April 16 but stated that he was testifying from firsthand experience. He told the police
that he was not certain about clothing but that he paid attention to the facial structure of
the men. He acknowledged that he might have initially told the dispatcher that one of the
men had a bandana or handkerchief over his face, but he testified that the man‟s face was
covered with a pulled-up T-shirt. Livingston said that he never identified the robbers
from any pictures, though he identified them at a preliminary hearing. He agreed that he
saw Walmart photographs of the Defendants. During cross-examination by Beckwith‟s
attorney, Livingston testified that the preliminary hearing occurred a year ago and that
only Cassell was present.

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 William Bell provided the same testimony as he did at the hearing on the motion
to suppress. In addition, he said that he began his law enforcement career as a patrol
officer and spent several years as a detective, a K-9 officer, and an undercover narcotics
officer. He agreed that his training enabled him to recognize individuals better. He
stated that the armed robbery occurred at around 3:40 p.m. on April 16, 2012, because he
had just picked his daughter up from school, and they went directly to Livingston‟s
Jewelry. The man who “was holding a semi-automatic stainless steel revolver” ordered
Livingston to open the safe, and the other man took pieces of jewelry from the cases and
put them into a blue bag. Bell could clearly see the unarmed man because his face was
uncovered and because they spoke to each other after the man repeatedly asked him to
keep his hands on his head. The armed man had his lower face covered to the tip of his
nose when he entered the store, but Bell could clearly see the man‟s face as he left
because his face was uncovered. He said he “made a lot of eye contact” with the armed
man because he was concerned with how the robbery would end. Bell concentrated on
the facial features of the suspects due to his law enforcement training and because he
feared for the safety of his young daughter. He stated, “[I]f someone points a weapon at
my eleven-year-old daughter, it‟s a face I‟m going to remember.” He identified the
Defendants in court as the perpetrators of the robbery and said he had “absolutely” no
doubt in his mind.

Bell further testified that when he confronted the unarmed man with the bag
outside of the store, the suspect ran away. The man then slipped and dropped his bag and
continued running past some restaurants. After the robbers disappeared from view, Bell
recovered the bag and returned to the store. On the evening of the robbery, the police
showed him some photographs. The following day, the police showed him a picture of
two men entering Walmart and asked if he could identify them. Bell said he recognized
the men in the picture as the robbery suspects. The Walmart photograph was time-
stamped “4/16/2012 14:14:37” and was admitted into evidence.

During cross-examination by Cassell‟s attorney, Bell agreed that he told police
that the perpetrators were “white males, mid-twenties, thin build[.]” He did not recall
describing the robbers‟ hair or clothing. He disagreed that his description was vague
because articles of clothing could be discarded or altered. Bell denied that he had
difficulty seeing the robbery suspects while he was kneeling on the floor. He agreed that
the police showed him Walmart surveillance photographs of the Defendants. However,
he disagreed that the police asked him, “Are these the guys?” Bell acknowledged that he
was shown a photographic lineup of six individuals at a later date. During cross-
examination by Beckwith‟s attorney, Bell stated that he observed the man whose face
was no longer covered for about fifteen seconds. He believed that he first identified the
other suspect during the photographic lineup. He was only aware of two robbery
suspects.
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 Christy Shelby and Kamela Hill were parked outside of Livingston‟s on the day of
the offense. Each witness testified that at around 3:30 or 4:00 p.m. they observed two
men run out of the jewelry store. Shelby saw one man with the duffle bag run into the
middle of the road and then drop the bag there. She then observed another man exit the
store with a gun at his side. Shelby did not recognize the two men at the time, but she
later saw their picture in the newspaper and identified them as the individuals who had
robbed the jewelry store. Hill observed that the men were dressed oddly for a hot day
and thought to herself, “[H]e looks just like somebody who would be a robber on TV.”
She noticed that one man had a large, dark duffle bag. She watched as he darted through
the parked cars and crossed the street. Hill then saw Bell exit the store and yell across the
street. When she turned around, she saw the bag in the middle of the road and the
suspects leaving through the alley. She later saw pictures of the two men in the
newspaper.

On cross-examination, Shelby stated that the two men who exited Livingston‟s
Jewelry were running quickly. She did not observe any individual looking into the
window of a vehicle. She agreed that the third man who left the store was also running.
Shelby did not recall seeing the two suspects with a gun, though she did observe the third
man with a gun at his side. In her police statement from the day of the robbery, she
described the men as wearing a hat, sunglasses, and long sleeves. She saw several
photographs at the time, but they were not pictures from Walmart. Shelby did not know
why her police statement was dated April 18, 2012. Hill said that she did not notice the
first suspect, but she did see the second man walking quickly. She said that he was
definitely wearing a hat and sunglasses. She stated that the men were about to run across
the street when Bell yelled for them to stop. She agreed that the newspaper picture was
next to an article about the robbery suspects.

Jamie Franks was also parked near Livingston‟s Jewelry on the day of the offense.
He testifed that while he was in his truck, he observed two suspicious men running from
behind the building. They appeared to be out-of-breath and paused for a few seconds to
speak to each other. Franks observed one of the men remove his hat and throw it on the
ground. They fled the scene in a red Pontiac Grand Am that was parked there. The
vehicle did not have a Tennessee license plate. Franks heard sirens and saw a police car
drive by, but he did not know what had happened. On cross-examination, Franks said
that the two men were about twenty yards from his truck. He did not recall seeing either
man wearing any sunglasses or bandanas. He said that the men were in their mid-
twenties and were about five feet and eight or ten inches tall. He did not clearly see their
faces.

Investigator Timmy Keen of the Savannah Police Department testified that he
responded to an armed robbery call at Livingston‟s Jewelry on April 16, 2012. After he
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arrived at the scene, Bell provided him with a blue tent bag that contained jewelry and
other items, including two rolls of duct tape. On cross-examination, Investigator Keen
said that on the day of the robbery, he secured the crime scene, interviewed some
witnesses, and contacted Walmart. The police obtained formal statements from witnesses
on the following day.

In a bench conference, Cassell‟s attorney objected to any testimony from Walmart
employee Jeanie Coffman regarding the contents of a surveillance video from the store,
asserting a violation of the best evidence rule. The trial court overruled the objection and
held that the defense could renew the objection during the witness‟s testimony. Jeanie
Coffman, the loss prevention manager at the Walmart store in Savannah, testified that on
April 16, 2012, Investigator Keen contacted her and asked if the store was missing any
rolls of duct tape. When she advised the police that there were two rolls missing,
Investigator Keen asked her to determine who had taken the tape. Coffman reviewed the
surveillance videos from the store‟s security cameras and created numerous still
photographs from the recordings. She identified photographs from April 16, 2012, of two
individuals in the Walmart parking lot and inside the store. There were also photographs
of a red car in the parking lot, and the earliest photograph was time-stamped “14:12:59,”
or 2:12 p.m. Coffman said that she selected still photographs of these two individuals
because she reviewed the video surveillance and saw them shoplift duct tape. The
Walmart photographs were admitted into evidence as a collective exhibit.

On cross-examination, Coffman conceded that the surveillance photographs did
not include any pictures of duct tape. She said that the duct tape was shown in the video
recording, which was not available at trial. She testified with 100 percent certainty that
the two missing rolls of duct tape from Walmart were the same as the duct tape recovered
from Livingston‟s Jewelry. She said that the duct tape was Gorilla brand and had a
different size, color, and label from the other duct tape that was sold at Walmart.
Coffman filed a police report for the missing duct tape, though the matter was never
prosecuted. She acknowledged that other stores in Savannah might also sell Gorilla
brand duct tape.

Officer T.J. Barker of the Savannah Police Department testified that he became
involved with the robbery investigation on April 17, 2012, because he had the day off on
April 16. He recalled that the police released the Walmart surveillance photograph to the
local media on April 18 or 19. Officer Barker did not learn the names of the two
individuals in the photograph until April 23. At that point, he compiled a photographic
lineup, which was shown to Bell at the police station. He said that Bell identified the two
Defendants as the perpetrators. Officer Barker then issued warrants and entered them
into a national criminal database. Cassell was later apprehended in Toledo, Ohio, and
Beckwith was apprehended in Chicago, Illinois. On cross-examination, Officer Barker
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agreed that he showed the Walmart photograph of the two Defendants to Bell on April
17. On April 23, he asked Bell to review a six-person photographic lineup, and Bell
identified the two Defendants as the robbers. He said he showed a lineup to Bell because
Bell had been in close proximity to the two suspects at the crime scene. Officer Barker
stated that other eyewitnesses had also identified the Defendants as the perpetrators based
on the Walmart surveillance photograph.

Cassell and Beckwith elected not to testify and did not present any proof. Based
on the evidence, the jury convicted them as charged of aggravated robbery.

Sentencing Hearing. At the joint sentencing hearing, the State introduced each of
the Defendants‟ presentence reports into evidence. Both reports included a victim impact
statement from Randy Livingston. Neither the State nor the Defendants called any
witnesses.

Cassell‟s presentence report reflected that he was twenty-five years old at the time
of the robbery and a resident of Florida. His prior record included a robbery conviction
in 2007 in Pinellas County, Florida, when he was twenty years old. According to the
report, Cassell robbed a federal credit union without a weapon, though the money was
later recovered. He was sentenced to serve four years in the Florida Department of
Correction followed by one year of probation. His adult record also included various
drug offenses that were committed when Cassell was nineteen. His juvenile record began
at age thirteen and included offenses such as burglary, possession of a weapon on school
grounds, battery, and possession of drug paraphernalia. The report further stated that
Cassell and Beckwith were cousins.

Beckwith‟s presentence report reflected that he was thirty-three years old at the
time of the robbery in April 2012. In August 2012, he was convicted of being a felon in
possession of a weapon in Cook County, Illinois, after he was apprehended there in May
2012. In 2007, Beckwith was convicted of unarmed robbery in Pinellas County, Florida,
and received a five-year sentence.1 The presentence report also indicated that Beckwith
had periods of incarceration in Florida with multiple infractions during his time in prison.
He was first incarcerated in 1996 in Florida for an armed robbery that occurred when he
was sixteen. Beckwith had been charged as a juvenile for that offense but was later
treated as an adult.

1
Although not specified in the presentence reports, it appears that the Defendants committed the
unarmed robbery in Pinellas County, Florida, together. The offense occurred on February 12, 2007, and
Cassell was convicted in case number 07-03271 while Beckwith was convicted in case number 07-03272.

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 At the conclusion of the hearing, the trial court sentenced each Defendant as a
Range I, standard offender to twelve years in the Tennessee Department of Correction
and aligned the sentences consecutively to their prior sentences in Florida. Cassell filed a
motion for new trial, which the trial court denied on January 6, 2014. Beckwith did not
file a motion for new trial. Both Defendants timely appealed the judgments of the trial
court.

ANALYSIS

I. Motion to Suppress. On appeal, Cassell and Beckwith argue that the trial court
should have suppressed William Bell‟s pretrial and in-court identification of them
because the procedure was unduly suggestive and violated their due process rights.
Specifically, the Defendants contend that Bell‟s identification was unreliable because he
identified an unspecified suspect on the day of the robbery, the police showed him a
Walmart photograph of the two Defendants prior to a photographic lineup, and the lineup
included both Defendants in the same array. The Defendants further assert that the lineup
“clearly highlights” them because the other four photographs have a superimposed
diamond and height markings in the background. The State responds that the
photographic identification was not unduly suggestive or unreliable, and the trial court
properly admitted the evidence. We agree with the State.

An appellate court may consider the proof presented at the suppression hearing
and the trial when determining whether the trial court properly denied a motion to
suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). It is well-established
that “a trial court‟s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
The Tennessee Supreme Court explained this standard in Odom:

Questions of 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. The party prevailing in the trial court is
entitled to the strongest legitimate view of the evidence adduced at the
suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence. So long as the greater weight of the
evidence supports the trial court‟s findings, those findings shall be upheld.

Id. However, this court‟s review of a trial court‟s application of the law to the facts is de
novo with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001); (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan,
958 S.W.2d 626, 629 (Tenn. 1997)). The defendant bears the burden of showing that the

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evidence preponderates against the trial court‟s findings. Odom, 928 S.W.2d at 23;
Yeargan, 958 S.W.2d at 629.

“To be admissible as evidence, an identification must not have been conducted in
such an impermissibly suggestive manner as to create a substantial likelihood of
irreparable misidentification.” State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998) (citing
Simmons v. United States, 390 U.S. 377 (1968)). “[E]ven if the identification procedure
were unnecessarily suggestive, suppression is only required when the totality of the
circumstances shows that the identification was unreliable.” State v. Scarborough, 300
S.W.3d 717, 729 (Tenn. Crim. App. 2009) (citing Neil v. Biggers, 409 U.S. 188, 198–99
(1972). In Neil v. Biggers, the Court established a two-part analysis that the trial court
must apply in determining the validity of a pre-trial identification. 409 U.S. at 198-99.
First, the trial court must determine whether the identification procedure was unduly
suggestive. Id. at 198. Next, if the trial court determines that the identification was
unduly suggestive, then it must consider whether, under the totality of the circumstances,
the identification procedure was nonetheless reliable. Id. at 199. This court must
consider the following factors in determining the reliability of an identification:

1. the opportunity of the witness to view the criminal at the time
of the crime.
2. the witness‟s degree of attention at the time of the crime.
3. the accuracy of the witness‟s prior description of the criminal.
4. the level of certainty demonstrated by the witness at the
confrontation.
5. the length of time between the crime and the confrontation.

State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998) (quoting Biggers, 409 U.S. at 199); see
State v. Philpott, 882 S.W.2d 394, 400 (Tenn. Crim. App. 1994). In Tennessee, it is
unnecessary to apply the totality of the circumstances test in Biggers to assess the
reliability of the identification if the trial court determines that the identification
procedure was not unduly suggestive. See State v. Butler, 795 S.W.2d 680, 686 (Tenn.
Crim. App. 1990).

The “showup” method involves the presentation of a suspect or a single
photograph of the suspect to a witness. Id. Courts generally condemn the use of a
showup because it is considered to be “inherently suggestive and unfair” to the suspect.
State v. Thomas, 780 S.W.2d 379, 381 (Tenn. Crim. App. 1989). Nevertheless, a showup
is not unnecessarily suggestive when “imperative circumstances necessitate” its use or
when it occurs “as an on-the-scene investigatory procedure shortly after the commission
of the crime.” Id. at 381. This court has explained that a showup, when used as an
investigatory procedure sufficiently proximate in both time and place to the offense, often
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serves the interests of justice. State v. Moore, 596 S.W.2d 841, 844 (Tenn. Crim. App.
1980). It can “„foster[] the desirable objectives of fresh, accurate identification which in
some instances may lead to the immediate release of an innocent suspect and at the same
time enable the police to resume the search for the fleeing culprit while the trail is
fresh.‟” Id. (quoting Bates v. United States, 405 F.2d 1104, 1106 (D.C. Cir. 1968)); see
also Simmons, 390 U.S. at 384-85 (concluding that photographic identification was
justified under the circumstances because the armed bank robbers were still at large, a
serious felony had been committed, law enforcement officials possessed inconclusive
clues which led them to the suspects, and they had to swiftly determine “whether they
were on the right track[.]”). A showup identification, therefore, violates due process only
when it is unnecessarily suggestive and unreliable.

Physical and photographic lineups are the preferred methods of identification.
Cribbs, 967 S.W.2d at 794. The Tennessee Supreme Court has held that photographic
lineups are admissible unless they are unduly suggestive:

Photographs contained in a photographic array do not have to mirror the
accused. Instead, the law simply requires that the police refrain from
“suggestive identification procedures.” Neil v. Biggers, 409 U.S. 188, 93
S. Ct. 375, 34 L. Ed. 2d 401 (1972). Thus, a photographic identification is
admissible unless, based upon the totality of the circumstances, “the
confrontation conducted . . . was so unnecessarily suggestive and conducive
to irreparable mistaken identification that [the accused] was denied due
process of law.” Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967,
1972, 18 L. Ed. 2d 1199, 1206 (1967).

Hall, 976 S.W.2d at 153. The risk of an eyewitness making an incorrect identification is
greater if the police show the eyewitness a lineup where a single photograph “is in some
way emphasized.” Simmons, 390 U.S. at 383. In addition, the risk of misidentification
increases “if the police indicate to the witness that they have other evidence that one of
the persons pictured committed the crime.” Id. This court has noted that “a lineup would
be considered unduly suggestive only when the other participants were grossly
dissimilar.” State v. Edwards, 868 S.W.2d 682, 694 (Tenn. Crim. App. 1993) (citing
U.S. v. Wade, 388 U.S. 218, 233 (1967); Shye v. State, 506 S.W.2d 169, 173 (Tenn.
Crim. App. 1973); Young v. State, 566 S.W.2d 895, 898 (Tenn. Crim. App. 1978)).

Here, the trial court concluded at the suppression hearing that there was “nothing
whatsoever in this record to even remotely suggest that this was a suggestive procedure
or anything that was geared to make Mr. Bell identify these Defendants.”
Notwithstanding this finding, the court also considered the totality of the circumstances
and determined that Bell had the opportunity to view the Defendants during the robbery
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with “rapt” attention. The court noted that the witness had prior law enforcement training
and had testified in detail regarding his efforts to observe the Defendants both directly
and indirectly. The court found that Bell‟s description of the perpetrators was not at odds
with the individuals who were subsequently arrested. It also found that Bell had
demonstrated 100 percent certainty at the confrontation and that the length of time
between the robbery and the confrontation was “very short[.]”

The trial court found that the Walmart surveillance photographs were “simply
routine police work” because investigators had determined that the suspects left duct tape
at the crime scene and that the tape could have been purchased or shoplifted from
Walmart. In reviewing the photographic lineup, the court concluded that it was “the most
unsuggestive lineup” that the court had ever seen. It found that Bell had identified
photographs 2 and 5 in the lineup as the Defendants. The court noted that photograph 3
looked like “it could be a twin brother” of Cassell and that photographs 1 and 4 had
similar facial features. The court acknowledged that the individual in photograph 6
appeared less similar to Beckwith but concluded that the lineup was not unduly
suggestive.

After reviewing the record, we conclude that the evidence fully supports the trial
court‟s denial of the motion to suppress based on its finding that there was nothing
unduly suggestive about the identification procedure. The record establishes that the
robbery occurred sometime between 3:30 and 4:00 p.m. after the school day had ended
on April 16, 2012. One robbery suspect had initially used his shirt to conceal his face,
but his face was later uncovered. The second suspect did not cover his face. After
fleeing the crime scene, the suspects left a canvas bag with two rolls of Gorilla brand duct
tape. Earlier in the afternoon, at around 2:14 p.m., the Defendants were seen in Walmart
surveillance photographs, and it was later discovered that duct tape was missing from the
store‟s inventory. Investigators developed the Defendants as robbery suspects based on
their presence at Walmart and their red vehicle. Without knowing the identities of the
two men, the police showed Bell the Walmart photograph the day after the robbery, while
the suspects were armed and still at large. The Walmart photograph is dark and depicts
the profiles of two men entering the store. The facial features of the men are unclear, but
their profile, height and build are apparent. Bell testified that he had observed the
robbers for five minutes and that he could clearly see their faces. After he was shown the
surveillance photograph, Bell confirmed to police that the individuals were involved in
the robbery. Under these circumstances, the showup identification was justified and not
unnecessarily suggestive. See Moore, 596 S.W.2d at 844; see also Simmons, 390 U.S. at
384-85.

We further conclude that the photographic lineup was not unduly suggestive.
When the police learned the identities of the Defendants, they compiled a lineup with six
-12-
color photographs depicting clear facial features from the neck up. On April 23, seven
days after the robbery, Bell positively identified the two Defendants from the
photographic lineup. All of the photographs depict men with close-cropped hair and
similar facial features. The six men have their eyes open and their mouths closed.
Although the Defendants are correct that their photographs do not contain height
indicators or superimposed diagonal lines, we disagree that the lineup “clearly highlights”
them. We agree with the trial court that photograph 6 is the most dissimilar individual,
but we reiterate that the “[p]hotographs contained in a photographic array do not have to
mirror the accused.” Hall, 976 S.W.2d at 153. Here, Bell was specifically advised that
the lineup may or may not include the guilty parties. He testified that he did not pay
attention to the backgrounds in the lineup and that he was 100 percent positive regarding
his identification of the Defendants. Upon review of the six photographs, we cannot
conclude that the Defendants‟ photographs were “grossly dissimilar” to the others.
Edwards, 868 S.W.2d at 694.

Moreover, the totality of the circumstances reflects that Bell‟s identification was
reliable. See Biggers, 409 U.S. at 199. First, Bell had the opportunity to view the
robbery suspects in the jewelry store for five minutes. The incident occurred during the
day, and Bell had an unobstructed view of the suspects‟ faces. Bell also had the
opportunity to view the suspects when he pursued them on foot after the robbery.
Second, Bell testified that he observed the men during the entire course of the robbery
and that he “made a lot of eye contact” with the armed man because he was concerned
about how the incident would end. Moreover, as an experienced former police officer,
Bell was able to pay closer attention to the suspects than a casual observer would. See,
e.g., State v. Biggs, 211 S.W.3d 744, 751-52 (Tenn. Crim. App. 2006) (citing cases that
recognize the difference in observations between trained law enforcement and lay
witnesses); see also Manson v. Brathwaite, 432 U.S. 98, 115 (1977). Third, Bell
described the suspects as white males in their early twenties with thin builds. Although
his description was general in nature, it was accurate. Fourth, Bell testified at the
suppression hearing that he was 100 percent certain of his identification of the
Defendants. Bell further identified the Defendants at trial with absolutely no doubt in his
mind.2 Finally, Bell identified the Defendants from a photographic lineup only one week
after the robbery. Under these circumstances, we conclude that the trial court did not err
in denying the Defendants‟ motion to suppress. Moreover, because we conclude that the
Defendants are not entitled to relief on this issue, we need not consider Beckwith‟s
argument that the trial court committed plain error in admitting identification evidence.

2
Although the Defendants appear to argue that Bell‟s identification was unreliable because he
identified an unspecified third suspect on the day of the robbery, the record does not support this claim.
At the suppression hearing, Bell conceded that he could not recall exactly when and what he was shown
by the police, but he testified that he was confident in his identification of the Defendants.
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 II. Evidentiary Ruling. Cassell argues that the trial court erred in allowing Jeanie
Coffman to testify about the contents of the Walmart surveillance video. He asserts that
the testimony violated the best evidence rule and was inadmissible hearsay. We
understand Cassell‟s argument to be that Coffman should not have testified that she
observed the Defendants shoplift duct tape in the surveillance video without presenting
any video recording or still photographs depicting the Defendants removing the tape.
The State responds that Cassell has waived this evidentiary issue and that any error was
harmless. We agree with the State.

Initially, we note that Cassell has failed to include the transcript from the motion
for new trial hearing in the record on appeal. The appellant has the burden of ensuring
that the appellate record contains a fair, accurate, and complete account of what has
occurred regarding the issues that are the bases of the appeal. See Tenn. R. App. P.
24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). “In the absence of an
adequate record on appeal, we must presume that the trial court‟s ruling was supported by
the evidence.” State v. Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing
Smith v. State, 584 S.W.2d 811, 812 (Tenn. Crim. App. 1979); Vermilye v. State, 584
S.W.2d 226, 230 (Tenn. Crim. App. 1979)).

In his motion for new trial, Cassell argued as follows:

The testimony of Jeanie Wilburn [sic] as to what the closed circuit
video of the suspects at Walmart in Savannah, Tennessee [depicted] should
not have been admitted as it violated both the best evidence rule and the
hearsay rule. The video was never provided to the Defendant to examine
and therefore the Defendant‟s right to cross examine witnesses against him
was violated.

In a written order filed on January 6, 2014, the trial court denied Cassell‟s motion, noting
that the matter was heard on November 25, 2013. We cannot speculate regarding the trial
court‟s reasoning in the absence of the transcript from the hearing. Accordingly, we
conclude that the trial court properly admitted the witness‟s testimony at trial.

Waiver notwithstanding, we note that “[g]enerally, the admissibility of evidence
rests within the trial court‟s sound discretion, and the appellate court does not interfere
with the exercise of that discretion unless a clear abuse appears on the face of the record.”
State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d
136, 141 (Tenn. 2007)). A trial court is found to have abused its discretion when it
applies “an incorrect legal standard or reaches a conclusion that is „illogical or
unreasonable and causes an injustice to the party complaining.‟” Lewis, 235 S.W.3d at
141 (quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006).
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 “„Relevant evidence‟ means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. Tennessee Rule of
Evidence 402 provides that “[a]ll relevant evidence is admissible except as [otherwise]
provided. . . . Evidence which is not relevant is not admissible.” Id. at 402. However,
even relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Id. at 403.

Here, the trial court properly admitted Coffman‟s testimony. Coffman testified
regarding what she personally viewed on the Walmart surveillance video, and the
contents were extremely probative as evidence of Cassell‟s guilt. Still photographs of the
Defendants from the video matched the descriptions provided by witnesses at the scene
of the robbery. The still photographs from Walmart also depicted a red car that was
similar to the vehicle that Jamie Franks witnessed leaving the crime scene. Investigators
contacted Walmart to determine if any Gorilla duct tape was missing, and the store
reported that two rolls had been stolen. The probative value of Coffman‟s testimony
substantially outweighed any danger of unfair prejudice to the Defendants. Finally, in
light of the eyewitness testimony identifying the Defendants as the perpetrators of the
armed robbery at Livingston‟s Jewelry, Cassell cannot show that any erroneous
admission of Coffman‟s testimony “more probably than not affected the outcome of the
trial.” See State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (when assessing the
impact of a non-constitutional error, the reviewing court may appropriately consider the
properly admitted evidence of a defendant‟s guilt). Accordingly, Cassell is not entitled to
relief on this issue.

III. Sufficiency of the Evidence. Next, the Defendants argue that the evidence is
insufficient to sustain their convictions for aggravated robbery. Specifically, they
contend that the State failed to prove their identities as the perpetrators beyond a
reasonable doubt. They maintain that their convictions were based on unreliable
eyewitness testimony that was influenced by a highly suggestive Walmart photograph.3
The State responds that there is sufficient proof to support the Defendants‟ convictions
and that the jury accredited the State‟s witnesses. We agree with the State.

The State, on appeal, is entitled to the strongest legitimate view of the evidence
and all reasonable inferences which may be drawn from that evidence. State v. Davis,
354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)). This court has often stated that “[a] guilty verdict by the jury, approved by the
3
It should be noted that Cassell and Beckwith do not dispute that they are the individuals depicted
in the still photograph from the Walmart surveillance video.
-15-
trial court, accredits the testimony of the witnesses for the State and resolves all conflicts
in favor of the prosecution‟s theory.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict also “removes the presumption of innocence and replaces it with a
presumption of guilt, and the defendant has the burden of illustrating why the evidence is
insufficient to support the jury‟s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982)).

When a defendant challenges the sufficiency of the evidence, the standard of
review applied by this court is “whether, after reviewing 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). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,
“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if
the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.” Guilt may be found beyond a reasonable doubt where there is direct
evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

The standard of review for sufficiency of the evidence “„is the same whether the
conviction is based upon direct or circumstantial evidence.‟” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). The jury as the trier of fact must evaluate the credibility of the witnesses,
determine the weight given to witnesses‟ testimony, and reconcile all conflicts in the
evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State,
575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury determines the
weight to be given to circumstantial evidence and the inferences to be drawn from this
evidence, and the extent to which the circumstances are consistent with guilt and
inconsistent with innocence are questions primarily for the jury. Dorantes, 331 S.W.3d at
379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When considering the
sufficiency of the evidence, this court shall not reweigh the evidence or substitute its
inferences for those drawn by the trier of fact. Id. Our supreme court stated the rationale
for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury see
the witnesses face to face, hear their testimony and observe their demeanor on the
stand. Thus the trial judge and jury are the primary instrumentality of justice to
determine the weight and credibility to be given to the testimony of witnesses. In
the trial forum alone is there human atmosphere and the totality of the evidence
cannot be reproduced with a written record in this Court.

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Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)).

“The identity of the perpetrator is an essential element of any crime.” Rice, 184
S.W.3d at 662 (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)). The State
has the burden of proving the identity of the defendant as the perpetrator beyond a
reasonable doubt. Cribbs, 967 S.W.2d at 779. The identity of the defendant as the
perpetrator may be established by direct evidence, circumstantial evidence, or a
combination of the two. Thompson, 519 S.W.2d at 793. “The credible testimony of one
identification witness is sufficient to support a conviction if the witness viewed the
accused under such circumstances as would permit a positive identification to be made.”
State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999) (citing State v. Strickland,
885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)). The identification of the defendant as
the perpetrator is a question of fact for the jury after considering all the relevant proof.
State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005) (citing Strickland, 885 S.W.2d at
87).

Here, Cassell and Beckwith do not dispute that an armed robbery took place at
Livingston‟s Jewelry. Instead, they argue that the proof is insufficient to establish their
identities as the perpetrators of the offense. They assert that although store owner Randy
Livingston testified that he could clearly see the perpetrators, he never made an out-of-
court identification of them. They further assert that retired police officer William Bell,
unlike other witnesses, never described the fact that one suspect wore a hat and the other
had sunglasses. The Defendants also claim that Christy Shelby and Kamela Hill provided
conflicting testimony and could not identify the suspects until they saw a Walmart
photograph. They note that Jamie Franks observed two men running to their car from a
distance and could not see their faces. Finally, the Defendants complain that although
Jeanie Coffman testified that she saw the Defendants steal duct tape from the surveillance
video, she failed to present any video or photographs of them removing the duct tape.

Viewing the evidence in a light most favorable to the State, we conclude that a
rational trier of fact could have found Cassell and Beckwith guilty of aggravated robbery
beyond a reasonable doubt. The incident occurred in broad daylight on a Monday
afternoon in downtown Savannah, Tennessee. At trial, Livingston testified that he got a
“got a very good look” of the perpetrators, and he identified Cassell and Beckwith
“without a doubt” as the men who had robbed his store. Both Livingston and Bell stated
that they observed the men for five minutes in the store and that the suspects‟ faces were
not covered the entire time. Bell further testified that he concentrated on the facial
features of the suspects and that he would not forget the face of a person who pointed a
gun at his daughter. He positively identified the Defendants in a photographic lineup
seven days after the robbery, once the police learned the identities of the suspects. Bell
-17-
also identified the Defendants at trial as the perpetrators with absolutely no doubt in his
mind. This testimony, alone, is sufficient to sustain the convictions for both Defendants.
See Radley, 29 S.W.3d at 537; Strickland, 885 S.W.2d at 87. Shelby and Hill each stated
that they did not recognize the Defendants at the time of the robbery, but they identified
them as the robbers once they saw the Walmart photograph in the newspaper. Although
Franks could not clearly see the faces of the two men who fled in a red Pontiac, he
testified that the men were in their twenties and were about five feet and eight or ten
inches tall. Moreover, the State admitted the Walmart still photographs from April 16,
2012, into evidence, and the jury had the opportunity to compare the photographs with
the Defendants in court.

Cassell and Beckwith emphasize the discrepancies in the witness descriptions of
the perpetrators. However, the conflicts in the evidence were effectively presented to the
jury during cross-examination, and the jury chose to accredit the States‟ witnesses. We
will not reweigh or reevaluate the evidence. Despite inconsistencies in the witness
testimony regarding particular details, the State‟s witnesses were confident in their
identifications of the Defendants. Based on the evidence, a rational trier of fact could
conclude beyond a reasonable doubt that the State established the Defendants‟ identities
as the perpetrators of the armed robbery at Livingston‟s Jewelry on April 16, 2012.
Accordingly, they are not entitled to relief on this issue.

IV. Sentencing. Finally, the Defendants argue that the trial court erred in
sentencing them to twelve years‟ imprisonment consecutive “to anything pending in
Florida.” Specifically, Cassell asserts that he should not have received the same
maximum sentence as his co-defendant given that he was unarmed during the robbery
and only had one prior robbery in his record. Both Defendants contend that trial court
erred in ordering consecutive sentencing because “[i]f there was a sentence to be served
in Florida, the State should know. Otherwise, it would be up to Florida to determine if
any future sentence should be served consecutively or concurrently.” The State responds
that the trial court properly sentenced the Defendants. We agree with the State.

We review the length and manner of service of a sentence imposed by the trial
court under an abuse of discretion standard with a presumption of reasonableness. State
v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Moreover, the misapplication of
enhancement or mitigating factors does not invalidate the imposed sentence “unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed by the trial court within the appropriate range
should be upheld.” Id. This standard of review also applies to “questions related to
probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012). A trial court abuses its discretion only when it “applie[s] an incorrect legal
-18-
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997);
see also State v. Kyto Sihapanya, ___ S.W.3d ___, No. W2012-00716-SC-R11-CD,
2014 WL 2466054, at *2 (Tenn. Apr. 30, 2014).
Pursuant to the 2005 amendments to the Sentencing Act, a trial court must
consider the following when determining a defendant‟s specific sentence and the
appropriate combination of sentencing alternatives:
(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 §§ 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.

T.C.A. § 40-35-210(b). The defendant has the burden of showing the impropriety of the
sentence on appeal. Id. § 40-35-401(d), Sentencing Comm‟n Cmts.

The trial court sentenced Cassell and Beckwith as Range I, standard offenders to
twelve years in the Department of Correction for aggravated robbery, a Class B felony.
See T.C.A. § 39-13-402. In imposing the maximum sentence in the range, the court
found that both Defendants had a prior history of criminal convictions or criminal
behavior, in addition to those necessary to establish the range. See id. § 40-35-105, -
112(a)(2), -114(1). The court was particularly concerned that the Defendants had prior
robbery convictions and emphasized the fact that Beckwith had two robbery convictions
as well as weapons-related charges. Based on its review of the presentence reports, the
court noted that the Defendants had apparently committed a robbery together in 2007.

Cassell argues that the trial court erred in imposing the maximum sentence in the
range. He asserts that the court “was influenced” by Beckwith‟s record when imposing
the “same maximum sentence.” Here, the court stated that enhancement factor (1) was
“the primary enhancing factor” for both Defendants. A review of Cassell‟s prior
convictions shows that he possessed a juvenile and adult criminal history “evincing a
clear disregard for the laws and morals of society and evincing failure of past efforts at
rehabilitation” and, therefore, was properly given “first priority regarding sentencing
involving incarceration[.]” T.C.A. § 40-35-102(5). The record further reflects that the
-19-
Defendants were cousins who first committed a robbery together in 2007 in Florida and
then committed armed robbery of a jewelry store in Tennessee after their release from
prison in August 2011. Therefore, the maximum sentence was “justly deserved in
relation to the seriousness of the offense[.]” Id. § 40-35-102(1). Moreover, we note that
the Defendants did not receive the “same” sentence, because the court sentenced Cassell
at 85 percent release eligibility and Beckwith at 100 percent. See id. § 40-35-501(k)(1),
(2) (requiring a sentence for aggravated robbery to be served at 85 percent or at 100
percent for individuals with prior aggravated robbery convictions). We conclude that the
trial court did not impose an excessive sentence in Cassell‟s case.
Next, both Defendants contend that the trial court improperly imposed consecutive
sentencing. When a defendant is convicted of one or more offenses, the trial court has
discretion to decide whether the sentences shall be served concurrently or consecutively.
Id. § 40-35-115(a). The Tennessee Supreme Court has held “the abuse of discretion
standard, accompanied by a presumption of reasonableness, applies to consecutive
sentencing determinations.” State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013). A trial
court may order multiple offenses to be served consecutively if it finds by a
preponderance of the evidence that a defendant fits into at least one of the seven
categories in section 40-35-115(b). T.C.A. § 40-35-115(b). This court must give
“deference to the trial court‟s exercise of its discretionary authority to impose consecutive
sentences if it has provided reasons on the record establishing at least one of the seven
grounds listed in Tennessee Code Annotated section 40-35-115(b).” Pollard, 432 S.W.3d
at 861. Moreover, “[a]ny one of these grounds is a sufficient basis for the imposition of
consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn.
2013)). “So long as a trial court properly articulates reasons for ordering consecutive
sentences, thereby providing a basis for meaningful appellate review, the sentences will
be presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Id. (citing
Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705). When imposing consecutive
sentences, the court must still consider the general sentencing principles that each
sentence imposed shall be “justly deserved in relation to the seriousness of the offense,”
“no greater than that deserved for the offense committed,” and “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” T.C.A. §§ 40-35-
102(1), -103(2), -103(4); State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
After the trial court imposed a twelve-year sentence at the sentencing hearing, the
State requested that the court align the sentence “consecutive to anything that‟s pending
in Florida [.]” In ordering consecutive sentencing, the court found by a preponderance of
the evidence that Cassell and Beckwith were professional criminals, were offenders
whose record of criminal activity was extensive, and were dangerous offenders whose
behavior indicated little or no regard for human life and no hesitation about committing a
crime in which the risk to human life was high. T.C.A. § 40-35-115(b)(1), (2), (4). The
court found that the risk to human life was high because the robbery occurred in the
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presence of a minor child and both the child and the store owner were forced to lie face
down on the ground. Accordingly, Cassell and Beckwith‟s judgments reflect that the
instant sentence should be served consecutive to “Fla convictions[.]”

As previously noted, the existence of only one factor is sufficient to impose
consecutive sentencing. See Pollard, 423 S.W.3d at 862; T.C.A. § 40-35-115(b). This
court has held that “an extensive criminal history, standing alone, is enough to justify the
imposition of consecutive sentencing.” State v. Nelson, 275 S.W.3d 851, 870 (Tenn.
Crim. App. 2008) (citing State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App.
1997)). In the case of both Cassell and Beckwith, the record fully supports the trial
court‟s finding that they were offenders whose record of criminal activity was extensive.
See T.C.A. § 40-35-115(b)(2).
Cassell‟s juvenile record began in 2000, at age thirteen, when he was fined for
possession of tobacco products. At age fifteen, he was found guilty of battery, burglary,
attempted burglary of an automobile, possession of marijuana and possession of drug
paraphernalia. After his driver‟s license was suspended for two years at age seventeen,
Cassell was convicted of leaving the scene of an accident about a month later and was
found in contempt for driving. Cassell‟s adult record includes five drug-related
convictions committed when he was nineteen and a robbery conviction at age twenty.
Beckwith‟s presentence report did not contain information regarding his juvenile
record. However, he was treated as an adult at age sixteen after committing armed
robbery in 1995. For that offense, he served four years in a Florida prison and was
released to two years‟ probation in June 1999. He was resentenced to prison for violating
his probation six months after his release in 2000. After his subsequent release to
probation in 2003, Beckwith returned to prison in 2007 after he was convicted of being a
felon in possession of a weapon and simple possession. He was paroled in 2011 after
serving a five-year sentence for an unarmed robbery committed in 2007. After the armed
robbery occurred at Livingston‟s Jewelry in April 2012, Beckwith was apprehended in
Chicago in May 2012 and convicted in Illinois of being a felon in possession of a
weapon.
Based on the Defendants‟ criminal backgrounds, the trial court was well within its
discretion in ordering consecutive sentencing. Moreover, the record supports a finding
that Cassell and Beckwith had a long history of criminal conduct and that measures less
restrictive than confinement had frequently or recently been applied unsuccessfully to
them. See id. § 40-35-103(1)(A), (C). Therefore, the trial court properly exercised its
discretion in ordering the Defendants to serve their sentences consecutively.

“[W]hile consecutive sentences are discretionary, in a few instances, consecutive
sentences are mandated either by statute or by Tenn. R. Crim. P. 32.” Id. § 40-35-115(d),
-21-
Sentencing Comm‟n Cmts. Although not specifically relied upon by the trial court, we
note that Tennessee Rule of Criminal Procedure 32(c)(2)(B) provides:

If, as the result of conviction in another state or in federal court, the
defendant has any additional sentence or portion thereof to serve, the court
shall impose a sentence that is consecutive to any such unserved sentence
unless the court determines in the exercise of its discretion that good cause
exists to run the sentences concurrently and explicitly so orders.

Tenn. R. Crim. P. 32(c)(2)(B). According to their presentence reports, both Cassell and
Beckwith were convicted of a robbery that occurred in Pinellas County, Florida, on
February 12, 2007. Cassell‟s presentence report stated that Florida had a detainer on him
for the prior robbery conviction. Because the disposition date was August 18, 2007, it
appears that Cassell would have been released on probation on or around August 18,
2011. Beckwith received a five-year sentence for the 2007 robbery and was paroled on
August 12, 2011, about eight months before the armed robbery occurred in Savannah,
Tennessee. We conclude that the trial court did not abuse its discretion in ordering the
Defendants to serve their Tennessee sentence consecutive to their previously imposed,
unserved Florida sentence. Accordingly, we uphold the length and consecutive
alignment of the Defendants‟ sentences, and they are not entitled to relief.

CONCLUSION

Based on the foregoing authorities and analysis, we affirm the judgments of the
Hardin County Circuit Court.

_________________________________
CAMILLE R. MCMULLEN, JUDGE

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