State of Tennessee v. Brandon Dewayne Theus

07/12/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 17, 2017, at Knoxville

STATE OF TENNESSEE v. BRANDON DEWAYNE THEUS

Appeal from the Circuit Court for Madison County
No. 16-14 Roy B. Morgan, Jr., Judge
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No. W2016-01626-CCA-R3-CD
___________________________________

A Madison County jury convicted the Defendant, Brandon Dewayne Theus, of unlawful
possession of a firearm after previously having been convicted of a felony involving the
attempted use of force, violence, or a deadly weapon. The trial court sentenced the
Defendant to nine years in the Tennessee Department of Correction as a Range II,
multiple offender. On appeal, the Defendant challenges the trial court’s denial of his
motion to suppress evidence discovered as a result a vehicle stop, the sufficiency of the
evidence, and his sentence. Upon reviewing the record and the applicable law, we affirm
the judgment of the trial court. However, we remand the case to the trial court for
correction of the judgment to reflect that the Defendant was convicted pursuant to
Tennessee Code Annotated section 39-17-1307(b)(1)(A) rather than section 39-17-
1307(c).

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

George Morton Googe, District Public Defender, and Jeremy B. Epperson, Assistant
District Public Defender, for the appellant, Brandon Dewayne Theus.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Jody S. Pickens,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
 FACTUAL AND PROCEDURAL HISTORY

The Defendant’s conviction resulted from a traffic stop during which officers
observed a .40 caliber firearm inside a truck that the Defendant had been driving. The
evidence presented at trial established that on May 19, 2015, between 11:30 p.m. and
midnight, Investigator Robert Groves with the patrol division of the Jackson Police
Department received a be-on-the-lookout alert (BOLO) from the dispatcher regarding a
vehicle which was suspected to have been involved in a robbery and which was traveling
down East Chester Street into the city from the Beech Bluff area. The vehicle was
described as a white Chevrolet Silverado pickup truck that was occupied by an African-
American man and a Caucasian man.

Investigator Groves turned onto East Chester Street and saw a white Chevrolet
Silverado pickup truck, which appeared to be occupied by an African-American male, in
the parking lot of an Exxon. Investigator Groves reported over the police radio that he
observed a vehicle matching the description of the vehicle reported in the BOLO alert
and that he planned to attempt to stop the vehicle. Investigator Groves allowed the truck
to drive out of the parking lot and then stopped the truck in the area of Griffin Street and
East Chester Street.

Officer Kyle Hamilton and another officer joined Investigator Groves at the stop.
Investigator Groves approached the driver’s side of the truck, while Officer Hamilton and
the other officer approached the passenger’s side. The driver of the truck was identified
as the Defendant. Investigator Groves informed the Defendant that he had been alerted to
an incident outside of the city that involved a truck matching the description of the truck
that the Defendant was driving. As Investigator Groves was speaking to the Defendant,
Officer Hamilton signaled to Investigator Groves that he saw a weapon in the truck.
Investigator Groves asked the Defendant to step out of the truck in order to distance the
Defendant from the weapon.

Investigator Groves testified that the Defendant initially refused to comply with
his instruction to exit the truck. The Defendant stated that he was not going to exit the
truck, asked why he needed to exit the truck, and stated that his grandfather lived down
the street. The Defendant eventually exited the truck after Investigator Groves opened
the door.

Investigator Groves stated that the officers did not mention to the Defendant that
they saw a weapon inside of the truck. When one of the officers told the Defendant that
the officer was going to pat the Defendant down for weapons, the Defendant stated that
the truck belonged to his grandfather and that his grandfather had a gun inside the truck.
Investigator Groves informed the Defendant that the officers had to determine whether
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the Defendant was allowed to possess a gun and whether the gun was stolen. The
Defendant told Investigator Groves that the gun was not stolen and asked to call his
grandfather.

Investigator Groves ran the Defendant’s information through the National Crime
Information Center (NCIC) and learned that the Defendant had two prior felony
convictions. He subsequently arrested the Defendant and placed him in the backseat of
the patrol car. While the Defendant was in the backseat of the patrol car and the officers
were outside, the Defendant retrieved his cellular phone and made multiple calls.
Investigator Groves testified that during one conversation, a man asked whether the
Defendant’s fingerprints would be on the gun, and the Defendant replied that they should
not be on the gun. The video of the stop from the dash camera and the backseat camera
of Investigator Groves’s patrol car were played for the jury. The man whom the
Defendant called was later identified as the Defendant’s grandfather, and the Defendant
told his grandfather that a friend placed the gun in the truck. During a call to a woman
who was later identified as the Defendant’s girlfriend, the Defendant informed her that he
had been arrested due to “the gun.”

The officers recovered a Hi-Point handgun with a magazine loaded with ten .40
caliber rounds from the truck. Investigator Groves stated that the gun was lying on the
floorboard with the grip of the gun facing the driver.

On cross-examination, Investigator Groves testified that the Defendant was not
involved in the robbery in the Beech Bluff area. The owner of the truck was Mr. Leroy
Theus, who lived on Griffin Street, the area in which Investigator Groves stopped the
truck. At one point during the stop, Investigator Groves told the Defendant, “You’re
good,” but he did not know why he made the statement.

Investigator Groves testified that the gun was located on the back floorboard with
a portion of the gun “barely” underneath the seat. He acknowledged that he believed that
the gun was physically placed within arm’s reach of the driver.

On redirect examination, Investigator Groves testified that he had to make a “U-
turn” in order to initiate the stop. He said that as a result, the Defendant had ample time
to discard the gun or place it anywhere inside the truck.

Mr. Leroy Theus, the Defendant’s grandfather, testified that he lived on Griffin
Street and owned a white Chevrolet Silverado pickup truck. Mr. Theus denied that the
gun found in the truck belonged to him and said he did not know who owned the gun.

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 Officer Amiee Oxley, the director of the property and evidence unit of the Jackson
Police Department, was unable to find any identifiable fingerprints on the gun. She
explained that according to the Bureau of Alcohol, Tobacco, Firearms, and Explosives,
the likelihood of locating fingerprints on a firearm is approximately ten percent because
firearms generally have few smooth surfaces. Officer Oxley stated that based on her
experience, the likelihood is approximately five percent. Officer Oxley did not attempt to
obtain fingerprints from the rounds in the magazine.

Officers traced the gun seized from the truck to Ms. Briyana Gray. Ms. Gray
purchased the gun through a website in 2014; the gun was transferred to Range USA in
Jackson; and Range USA transferred the gun to Ms. Gray in November 2014. Ms. Gray
testified that she kept the gun for six or eight months and then sold it to her cousin,
Rondrez Billings, because her mother did not want it in her house. Ms. Gray did not
know what happened to the gun after she sold it.

On cross-examination, Ms. Gray testified that she received a subpoena to testify a
few months before trial. She said she did not have any issues coming to court to testify.
She did not know the Defendant and had not seen him or spoken to him previously.

The State introduced a recording of telephone calls made by the Defendant from
the jail two days prior to trial. During one of the calls, the Defendant instructed his
girlfriend to tell Mr. Billings and Ms. Gray not to attend the trial and told his girlfriend to
inform Mr. Billings that the Defendant knew where he lived and was “serious as a heart
attack.”

Investigator Ashley Robertson with the Jackson Police Department testified that
after officers initially interviewed Ms. Gray, they attempted to locate Mr. Billings but
were unsuccessful. A subpoena was issued for Mr. Billings on March 16, 2016, to testify
during the May 2016 trial but was returned on March 18 as undeliverable because the
apartment listed on the subpoena was vacant.

The State introduced a certified judgment showing that on February 12, 2001, the
Defendant pled guilty to facilitation of first degree murder and received a fifteen-year
sentence.

The Defendant testified that he was with Mr. Billings prior to the stop. He said
they had just left work for the day and stopped by his grandfather’s house to borrow his
truck so that they could go to the convenience store to purchase cigarettes. The
Defendant stated that as they were driving into the parking lot, he saw six cars from the
sheriff’s office driving down East Chester Street. He saw two patrol cars driving up and

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down the street as he entered the convenience store. He said that when he returned to the
truck, Mr. Billings was gone.

The Defendant testified that he was driving to his grandfather’s house to return the
truck when he was stopped by the police. The Defendant stated that after the officer
approached the truck, the officer told him that he “was good,” which meant that he was
allowed to leave. The officer then instructed him to step outside of the truck. The
Defendant told the officer that he did not do anything wrong, that he could produce a
valid driver’s license and the truck’s registration, and that the truck belonged to his
grandfather, who could give the officers permission to search the truck.

The Defendant maintained that the video recording of the stop was not accurate
because it did not depict the second officer assuming control of the situation and the
second officer’s statements could not be heard in the recording. According to the
Defendant, the second officer instructed him to exit the truck and that when the
Defendant asked why, the second officer replied, “It’s a gun right there.” The Defendant
testified that he did not know that a gun was inside the truck and did not learn about the
gun until the officers informed him of it. The Defendant stated that the gun was on the
floorboard behind the passenger’s seat and tucked a bit underneath the seat. He
explained that he believed that the gun had to belong to his grandfather because the gun
was in his grandfather’s truck. The Defendant stated that after he received discovery
from the State, he saw Mr. Billings’s name on the witness list and Ms. Gray’s statement
to the police that she sold the gun to Mr. Billings. The Defendant explained that after
reviewing this information, he believed that Mr. Billings placed the gun inside the truck
and then fled.

The Defendant also maintained that the recording of his cellular phone
conversations while in the backseat of the patrol car was inaccurate. He stated that when
his girlfriend asked him why he was going to jail, he did not say “the gun” but said “a
gun.”

On cross-examination, the Defendant testified that although he told his grandfather
that a friend placed the gun inside the truck, he later said that he did not know who placed
the gun inside the truck. The Defendant explained that the friend to whom he was
referring was Mr. Billings.

While acknowledging that he told his girlfriend to contact Mr. Billings and tell
him to not attend the trial, the Defendant denied that he attempted to prevent witnesses
from attending the trial and testifying. The Defendant also denied threatening Mr.
Billings. The Defendant stated that although he believed that Mr. Billings would testify
that the gun belonged to Mr. Billings, the Defendant told Mr. Billings to not attend trial
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because he believed that Investigator Robertson “probably had got to” Mr. Billings. The
Defendant believed that Investigator Robertson threatened Mr. Billings and manipulated
him into testifying for the State because Mr. Billings was a convicted felon. The
Defendant said it was possible that Investigator Robertson also threatened Ms. Gray. On
redirect examination, the Defendant testified that he did not believe that Mr. Billings
would testify in his favor due to Mr. Billings’s status as a convicted felon.

The jury convicted the Defendant of unlawful possession of a firearm after
previously been convicted of a felony involving the attempted use of force, violence, or a
deadly weapon, a Class C felony. See T.C.A. § 39-17-1307(b)(1)(A), (2). Following a
sentencing hearing, the trial court sentenced the Defendant to nine years to be served in
confinement as a Range II, multiple offender.

ANALYSIS

I. MOTION TO SUPPRESS

The Defendant contends that the trial court erred in denying his motion to suppress
the evidence resulting from the search of the truck because the officer did not have a
search warrant and the Defendant was not engaged in illegal or suspicious conduct when
operating the truck. The State responds that the stop was supported by reasonable
suspicion. We agree with the State.

A. Suppression Hearing

Investigator Groves offered testimony during the suppression hearing that was
consistent with his testimony at trial, including the information in the BOLO that he
received from the city dispatcher, his observation of the truck matching the description of
the truck relayed in the BOLO, the circumstances of the seizure, and Officer Hamilton’s
observation of the gun in plain view. Investigator Groves explained that once a gun is
viewed in a vehicle, the officer should distance the occupant from the gun to prevent the
occupant from reaching for it. He stated that by the time he was notified that the BOLO
had been canceled, officers already had approached the truck, seen the gun, and were in
the process of getting the Defendant out of the truck.

On cross-examination, Investigator Groves testified that according to the arrest
warrant that he prepared, the traffic stop occurred at approximately midnight. He noted
that information in the arrest report listed the traffic stop as occurring at 11:51 p.m. and
said that this time was possibly listed by the dispatcher.

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 Investigator Groves testified that according to the video of the stop from the dash
camera in his patrol car, he first saw the truck in the Exxon parking lot at 11:49:41 p.m.
He pulled in behind the truck to make the stop at 11:50 p.m. He stated that when he
approached the Defendant on the driver’s side, he had not learned that the BOLO had
been canceled. Officer Hamilton signaled to Investigator Groves about seeing the gun in
the truck at 11:51:11 p.m. Investigator Groves said he was not informed about the
cancelation of the BOLO until after officers observed the gun in the truck.

On redirect examination, Investigator Groves testified that he had no way to
compare the timing of the events discussed in the radio traffic to the time listed in the
video of the stop. He stated that he was familiar with the Defendant’s criminal history
when he conducted the traffic stop. Investigator Groves also stated that prior to the
encounter, he knew who the Defendant was and that he was a convicted felon. However,
there is nothing to suggest that Investigator Groves recognized the Defendant prior to the
stop.

On re-cross examination, Investigator Groves testified that he believed that he had
encountered the Defendant on an occasion prior to the stop. Investigator Groves also
received information about the Defendant’s release from prison and his gang affiliation
through a program called “Blue Impact.”

Investigator Robertson testified that due to the amount of gang-involved shooting,
the Jackson Police Department implemented a program called “Blue Impact” where
different divisions of the police department shared information regarding various
individuals and their criminal histories. Investigator Robertson believed that the
Defendant was one of the individuals whose information was shared through “Blue
Impact.” According to Investigator Robertson, the Defendant, along with other members
of the Vice Lords, was a suspect in the 2014 murder of a member of the Hoover Crips
gang.

Investigator Robertson created a sequence of events regarding the traffic stop
based on records from central dispatch. He testified that according to the records, the
county dispatcher advised the city dispatcher of the BOLO at 11:43:43 p.m. The city
dispatcher broadcast the BOLO of the officers from the Jackson Police Department at
11:45:04 p.m. At 11:49:30 p.m., Investigator Groves called central dispatch, reported
seeing the truck leaving a gas station on East Chester Street, and stated that he would try
to conduct a traffic stop. At 11:50:05 p.m., the county dispatcher called the city
dispatcher to cancel the BOLO. While the county dispatcher was talking with the city
dispatcher, Investigator Groves called at 11:50:08 p.m. and reported that he was stopping
the truck. At 11:50:42 p.m., the city dispatcher broadcast over the radio to the city
officers that the BOLO was canceled.
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 On cross-examination, Investigator Robertson testified that the dash camera on
Investigator Groves’s patrol car was not synced with the times listed in the dispatcher’s
records. He stated that as a result, there could be a discrepancy of a few seconds to a few
minutes or there could be no discrepancy.

The Defendant presented the testimony of Mr. Kenneth Michael Bickerstaff, who
owned a pallet shop on Lohrig Road in Madison County. Mr. Bickerstaff testified that on
May 19, 2015, he learned that an employee intended to burglarize the shop. Mr.
Bickerstaff waited at the shop to stop the burglary. At approximately 11:45 p.m., he saw
a Caucasian female; Will Anderson, an African-American male; and Cody Mills, a
Caucasian male, coming from a nearby wooded area. Mr. Bickerstaff fired a warning
shot with his rifle, and the three people fled. Mr. Bickerstaff called 9-1-1 and gave the
operator Mr. Anderson’s name. He did not believe that he relayed to the operator any
information about a truck and said he was unaware of the truck until after officers arrived
at the scene.

Mr. Dekontee St. Clair, who lived nearby, testified that on May 19, 2015, he was
lying in bed when he heard a gunshot. He looked outside, saw the silhouettes of several
individuals running, and called the sheriff’s department. Sergeant Karen Pomeroy of the
Madison County Sheriff’s Office apprehended the suspects after they crashed their
vehicle.

At the conclusion of the hearing, the trial court denied the Defendant’s
suppression motion and found that the stop was based on reasonable suspicion. The trial
court found that the truck driven by the Defendant match the description of the truck
subject to the BOLO. The trial court credited Investigator Groves’s testimony that by the
time that the BOLO was canceled, the officers observed the firearm in plain view and
were getting the Defendant out of the truck. The trial court found that Investigator
Groves verified that the Defendant was a convicted felon. The trial court subsequently
entered a written order incorporating its findings.

B. Analysis

A trial court’s factual findings made during a motion to suppress are binding on an
appellate court unless the evidence preponderates against them. State v. Saylor, 117
S.W.3d 239, 244 (Tenn. 2003). Determinations of witness credibility and the resolution
of conflicts in the evidence are left to the trial court. State v. Riels, 216 S.W.3d 737, 753
(Tenn. 2007). The prevailing party is entitled to the strongest legitimate view of the
evidence and to all reasonable inferences drawn from the evidence. State v. Day, 263
S.W.3d 891, 900 (Tenn. 2008). A trial court’s conclusions of law are reviewed de novo.

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State v. Sawyer, 156 S.W.3d 531, 533 (Tenn. 2005). Likewise, a trial court’s application
of law to the facts is reviewed de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

The State argues in a footnote in its brief that the Defendant “probably” lacks
standing to seek to suppress the handgun found in his grandfather’s truck. However, the
State did not raise the issue of standing in the trial court. Accordingly, the issue is
waived. See State v. Kale Sandusky, No. M2010-02300-CCA-R3-CD, 2012 WL 405660,
at *2 (Tenn. Crim. App. Feb. 8, 2012) (“The issue of standing cannot be raised for the
first time on appeal and is waived if it is not previously raised in the trial court.”) (citing
State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim. App. 1991)).

Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for individuals against unreasonable
searches and seizures. State v. Day, 263 S.W.3d 891, 900-01 (Tenn. 2008). “[A]
warrantless search or seizure is presumed unreasonable, and evidence discovered as a
result thereof is subject to suppression unless the State demonstrates that the search or
seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant
requirement.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

“One exception to the warrant requirement exists when a police officer makes an
investigatory stop based upon reasonable suspicion, supported by specific and articulable
facts, that a criminal offense has been or is about to be committed.” State v. Binette, 33
S.W.3d 215, 218 (Tenn. 2000). “The level of reasonable suspicion required to support an
investigatory stop is lower than that required for probable cause.” Day, 263 S.W.3d at
902. Reasonable suspicion is “a particularized and objective basis for suspecting the
subject of a stop of criminal activity.” Binette, 33 S.W.3d at 218. The reasonableness of
the stop is assessed from an objective perspective. Day, 263 S.W.3d at 903. Courts
should consider the totality of the circumstances surrounding the stop, which “includes,
but is not limited to, objective observations, information obtained from other police
officers or agencies, information obtained from citizens, and the pattern of operation of
certain offenders.” State v. Bridges, 963 S.W.2d 487, 492 (Tenn. 1997) (quoting State v.
Watkins, 827 S.W.2d 293, 294 (Tenn. 1992)). “A court must also consider the rational
inferences and deductions that a trained police officer may draw from the facts and
circumstances known to him.” Watkins, 827 S.W.2d at 294.

The Defendant argues that he was lawfully operating the truck prior to the stop
and that the information included in the BOLO was insufficient to justify the stop. The
State responds that the information provided in the BOLO established reasonable
suspicion to justify the stop. We agree with the State.

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 “‘[A]n alert or BOLO report may provide the reasonable suspicion necessary to
justify an investigatory stop.’” Davila v. United States, 713 F.3d 248, 258 (5th Cir. 2013)
(quoting United States v. Rodriguez, 564 F.3d 735, 742 (5th Cir. 2009)); see also Dorsey
v. Barber, 517 F.3d 389, 396 (6th Cir. 2008) (recognizing that “[p]olice officers may rely
on police bulletins or flyers to detain persons based on reasonable suspicion that criminal
activity is afoot to whatever extent the bulletin itself was based on articulable facts that
would support reasonable suspicion”) (citations omitted).

In the present case, the BOLO alert described a white Chevrolet Silverado pickup
truck occupied by an African-American male and a Caucasian male and suspected to
have been involved in a robbery. The truck was described as traveling down East Chester
Street into the city limits of Jackson from the Beech Bluff area. Within minutes of
receiving the BOLO, Investigator Groves saw a truck matching that description in the
area to which the BOLO described the truck as traveling. Investigator Groves was not
notified that the BOLO was canceled until after he effectuated the stop and officers
viewed the firearm in plain view. We conclude that the totality of the circumstances,
including the fact that the truck matched the description of the truck subject to the BOLO,
that the truck was near the area where the BOLO provided that the truck would be, that
the officer viewed the truck within minutes of receiving the BOLO, and that the robbery
had recently occurred, was sufficient to establish reasonable suspicion to conduct an
investigatory stop to determine whether the occupant was involved in the reported
robbery. Accordingly, the trial court properly denied the Defendant’s motion to suppress
evidence seized as a result of the stop.

II. SUFFICIENCY OF THE EVIDENCE

The Defendant maintains that the evidence is insufficient to support his conviction
for unlawful possession of a firearm after having been convicted of a felony involving the
“attempted use of force, violence, or a deadly weapon.” When a defendant challenges the
sufficiency of the evidence, the relevant question for this court is “whether, after viewing
the evidence in the light most favorable to the State, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). On appeal, “‘the State is entitled to the strongest
legitimate view of the evidence and to all reasonable and legitimate inferences that may
be drawn therefrom.’” State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003) (quoting State
v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Therefore, this court will not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Instead, it is the trier of fact, not this court, who resolves any questions
concerning “the credibility of witnesses, the weight and value to be given the evidence, as
well as all factual issues raised by the evidence.” State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997).
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 A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is
then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to
support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

This court applies the same standard of review regardless of whether the
conviction was predicated on direct or circumstantial evidence. State v. Dorantes, 331
S.W.3d 370, 381 (Tenn. 2011). “Circumstantial evidence alone is sufficient to support a
conviction, and the circumstantial evidence need not exclude every reasonable hypothesis
except that of guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).

As charged in the indictment, Tennessee Code Annotated section 39-17-
1307(b)(1)(A) provides that “[a] person commits an offense who unlawfully possesses a
firearm” after having previously been convicted of a “felony involving the … attempted
use of force, violence, or a deadly weapon.” 1 Possession may be actual or constructive.
State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). “Constructive possession requires that
a person knowingly have the power and the intention at a given time to exercise
dominion and control over an object, either directly or through others.” State v.
Copeland, 677 S.W.2d 471, 476 (Tenn. Crim. App. 1984). Constructive possession of a
firearm “may occur only where the personally unarmed participant has the power and
ability to exercise control over the firearm.” Key v. State, 563 S.W.2d 184, 188 (Tenn.
1978). “‘Elements of possession for purposes of constructive possession are questions of
fact for the jury and are rarely susceptible to direct proof.’” State v. Gerald Dewayne
Triplett, No. W2015-00163-CCA-R3-CD, 2015 WL 9489506, at *5 (Tenn. Crim. App.
Dec. 29, 2015) (quoting State v. Ronald Killebrew, No. W2003-02008-CCA-R3-CD,
2004 WL 1196098, at *3 (Tenn. Crim. App. May 26, 2004)).

The evidence presented in the present case established that the firearm was found
in a truck that the Defendant was driving. The handle of the firearm was directed toward
the Defendant and within his reach. While the Defendant testified at trial that the gun
belonged to Mr. Billings, he told the police that he believed that the firearm belonged to
his grandfather, and he stated during a telephone conversation while in the back of the
patrol car that the gun belonged to a friend. The Defendant attempted to intimidate
witnesses to prevent them from attending the trial. Accordingly, the jury chose not to
credit the Defendant’s testimony. Rather, the evidence, when viewed in a light most
favorable to the State, establishes that the Defendant had the ability to exercise control
over the firearm and was, thus, in constructive possession of the firearm.
1
Although not raised as an issue on appeal, the indictment alleges that the Defendant was
previously convicted of a felony involving the “attempted use of force, violence, or a deadly weapon,”
while the trial court instructed the jury that the element of the offense required a prior felony conviction
involving the “use or attempted use of force, violence, or a deadly weapon.”
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 The Defendant next contends that his prior conviction for facilitation of first
degree murder is not a “felony involving the … attempted use of force, violence, or a
deadly weapon.” See T.C.A. § 39-17-1307(b)(1)(A). The State, however, responds that
the issue is waived because the Defendant has failed to cite to any authority to support his
argument. We find the State’s argument perplexing as the Defendant quotes various
statutes in his brief in support of his claim. We are equally perplexed by the State’s
argument that the Defendant waived the issue by failing to raise it in his motion for new
trial as the Defendant clearly raised sufficiency of the evidence as an issue in his motion
for new trial. Furthermore, sufficiency of the evidence need not be raised in a motion for
new trial in order to preserve the issue for appeal. See Tenn. R. App. P. 13(e).
Accordingly, we will address the Defendant’s argument.

The only evidence presented by the State at trial to establish that the Defendant
had been convicted of a prior felony involving the attempted use of force, violence, or a
deadly weapon was the certified judgment of conviction. According to the certified
judgment, the Defendant was originally charged with felony murder in the perpetration of
aggravated robbery which occurred on April 24, 2000, and subsequently pled guilty to
facilitation of first degree murder.

Tennessee Code Annotated section 39-17-1301(3) provides that “[c]rime of
violence includes any degree of murder, voluntary manslaughter, aggravated rape, rape,
especially aggravated robbery, aggravated robbery, burglary, aggravated assault or
aggravated kidnapping.” When a statutory definition provides that it “includes” specific
items, our supreme court has held that the “‘enumerated items are illustrative, not
exclusive.’” State v. Marshall, 319 S.W.3d 558, 561 (Tenn. 2010) (quoting Gragg v.
Gragg, 12 S.W.3d 412, 415 (Tenn. 2000)). Thus, while section 39-17-1301(3) lists
various “crime[s] of violence,” the list is not exclusive. Accordingly, we must consider
whether facilitation of first degree murder constitutes a violent felony for purposes of
Tennessee Code Annotated section 39-17-1307(b)(1)(A).

A defendant commits facilitation of a felony “if, knowing that another intends to
commit a specific felony, but without the intent required for criminal responsibility under
§ 39-11-402(2), the [defendant] knowingly furnishes substantial assistance in the
commission of the felony.” Id. § 39-11-403(a). Section 39-11-402(2) defines criminal
responsibility for the conduct of another as “[a]cting with the 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.”
Thus, a defendant must know that an individual intended to commit a specified felony
and the defendant must furnish substantial assistance to that individual without intending
to promote or assist in the commission of the specified felony or benefit in the proceeds.

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 The facilitation statute itself does not include an element of violence, force, or the
use of a deadly weapon. Nevertheless, the State “‘must prove the commission of a
specified felony’” to establish the offense of facilitation of a felony. State v. Willie Lee
Hughes, Jr., No. M2015-01688-CCA-R3-CD, 2106 WL 6956804, at *4 (Tenn. Crim.
App. Nov. 29, 2016), perm. app. denied (Tenn. Feb. 16, 2017) (emphasis in original)
(quoting State v. Parker, 932 S.W.2d 945, 951 (Tenn. Crim. App. 1996)); see T.C.A. §
39-11-403(a). In the present case, the underlying felony was first degree murder, which
is clearly a violent felony. Accordingly, we conclude that facilitation of first degree
murder is, likewise, a violent felony and that the evidence is sufficient to support the
Defendant’s conviction.

III. SENTENCING

The Defendant maintains that his sentence is excessive. Specifically, he contends
that the trial court erred in finding him to be a Range II, multiple offender, in not
imposing the minimum sentence, and in ordering him to serve his sentence in
confinement. The State responds that the trial court did not abuse its discretion in
imposing the sentence. We agree with the State.

A. Sentencing Hearing

During the sentencing hearing, the State presented the testimony of Ms. Susan
Haney-Reagan, an employee with the Tennessee Department of Correction who prepared
the presentence report regarding the Defendant. The State entered the presentence report
into evidence.

On cross-examination, Ms. Haney-Reagan testified that the Defendant did not
graduate from high school because he was incarcerated for a prior offense. The
Defendant subsequently obtained his GED while he was in prison. Ms. Haney-Reagan
noted that at the time of the Defendant’s arrest in the present case, he was employed at
Perseus. He also was working with a barber, “sort of like an apprenticeship.”

The State argued that the Defendant should be sentenced as a Range II, multiple
offender based upon his prior convictions for facilitation of first degree murder and
attempted robbery. Although the offenses occurred on the same day, the State argued
that convictions should be considered separate convictions pursuant to Tennessee Code
Annotated section 40-35-106(b)(4) because the statutory elements included serious
bodily injury, bodily injury, threatened serious bodily injury, or threatened bodily injury
to the victim. According to the State, the Defendant received two misdemeanor
convictions for simple possession of marijuana and harassment for offenses that occurred
while the Defendant was released on bond for the current case. The State noted that the
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Defendant’s bond for the current offense was revoked based on his conduct relating to the
harassment charge. At the time that the Defendant was taken into custody, the trial court
ordered a drug screen, and the Defendant tested positive for marijuana, which the State
argued constituted criminal behavior that the trial court could consider in sentencing the
Defendant. The State also noted the evidence presented at trial that the Defendant
threatened a witness in an effort to prevent the witness from attending the trial. Finally,
the State requested that the trial court consider information in the presentence report that
the Defendant incurred 106 rule infractions while incarcerated in the Department of
Correction for his prior convictions.

Defense counsel argued that the Defendant was a Range I, standard offender
because his prior convictions constituted a single course of conduct and should only be
considered as one prior offense. Defense counsel requested that the trial court consider
as a mitigating factor that the Defendant’s conduct neither caused nor threatened serious
bodily injury.

In imposing the sentence, the trial court stated that it considered the evidence
presented at trial and during the sentencing hearing, the presentence report, the nature and
characteristics of the criminal conduct, and the enhancing and mitigating factors. The
trial court found that the Defendant was a Range II, multiple offender, noting that while
the Defendant’s prior convictions for facilitation of first degree murder and attempted
robbery occurred on the same day, they constituted two separate convictions for
determining the applicable range because the convictions included serious bodily injury,
bodily injury, threatened serious bodily injury, or threatened bodily injury to the victim.

The trial court applied one enhancement factor, that the Defendant has “a previous
history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range.” T.C.A. § 40-35-114(1). The trial court applied as a
mitigating factor that the Defendant’s conduct “neither caused nor threatened serious
bodily injury.” Id. § 40-35-113(1). The trial court sentenced the Defendant to nine years
to be served in confinement as a Range II, multiple offender.

B. Analysis

A trial court’s sentencing decisions are generally reviewed for abuse of discretion,
with a presumption of reasonableness granted to within-range sentences that reflect a
proper application of the purposes and principles of sentencing. State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012). A trial court abuses its discretion when it applies an
incorrect legal standard, reaches an illogical conclusion, bases its decision on a clearly
erroneous assessment of the evidence, or employs reasoning that causes an injustice to
the party complaining. State v. Herron, 461 S.W.3d 890, 904 (Tenn. 2015). The court
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will uphold the sentence “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.” Bise, 380 S.W.3d at 709-10. Even if the trial court
“recognizes and enunciates several applicable mitigating factors, it does not abuse its
discretion if it does not reduce the sentence from the maximum on the basis of those
factors.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The trial court is “to be
guided by – but not bound by – any applicable enhancement or mitigating factors when
adjusting the length of a sentence.” Bise, 380 S.W.3d at 706. Further, “a trial court's
misapplication of an enhancement or mitigating factor does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”
Id. A sentence imposed by the trial court that is within the appropriate range should be
upheld “[s]o long as there are other reasons consistent with the purposes and principles of
sentencing, as provided by statute.” Id. The appealing party bears the burden of proving
that the sentence was improper. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In determining the sentence, the trial court must consider: (1) any evidence
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 applicable mitigating and enhancement factors; (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 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 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).

1. Length of Sentence

The Defendant maintains that the trial court erred in sentencing him as a Range II,
multiple offender. A multiple offender includes a defendant who has received “[a]
minimum of two (2) but not more than four (4) prior felony convictions within the
conviction class, a higher class, or within the next two (2) lower felony classes.” T.C.A.
§ 40-35-106(a)(1). In determining prior convictions, “convictions for multiple felonies
committed within the same twenty-four-hour period constitute one (1) conviction for the
purpose of determining prior convictions” with the exception of “convictions for which
the statutory elements include serious bodily injury, bodily injury, threatened serious
bodily injury or threatened bodily injury to the victim or victims, or convictions for the
offense of aggravated burglary.” Id. § 40-35-106(b)(4).

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 The trial court based its finding that the Defendant was a Range II, multiple
offender on the Defendant’s prior convictions for facilitation of first degree murder, a
Class A felony, and attempted robbery, a Class D felony. See id. §§ 39-11-117(a)(1), 39-
11-403, 39-12-101, 39-13-401. The trial court found that although the offenses occurred
on the same date, they were separate convictions for purposes of determining the
applicable range because the statutory elements of the offenses included “serious bodily
injury, bodily injury, threatened serious bodily injury or threatened bodily injury.” Id. §
40-35-106(b)(4).

Robbery is defined as “the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” Id. § 39-13-401. This court
has recognized that “the statutory elements of robbery include a threat of bodily injury
when the State is required to prove that the defendant committed the act through violence
or by putting the person in fear.” State v. Jamie Lynn Middlebrook, No. M2009-02276-
CCA-R3-CD, 2011 WL 198689, at *7 (Tenn. Crim. App. Jan. 11, 2011) (citing State v.
Iwanda Anita Buchanan, No. M2007-02870-CCA-R3-CD, 2008 WL 4467185 (Tenn.
Crim. App. Oct. 6, 2008)). As a result, an attempt to commit a robbery through violence
or by putting a person in fear also includes a threat of bodily injury.

With regard to the Defendant’s prior conviction for facilitation of first degree
murder, this court has stated that although the facilitation statute does not include an
element of actual or threatened bodily injury or serious bodily injury, the State must still
prove the commission of a specific felony as an element of facilitation of a felony. See
Willie Lee Hughes, Jr., 2016 WL 6956804, at *4. Because first degree murder includes
an element of serious bodily injury, facilitation of first degree murder includes such an
element. See id. (holding the defendant’s two prior convictions for facilitation of
aggravated robbery that occurred within the same twenty-four-hour period should not be
“merged” for purposes of determining the applicable sentencing range and reasoning that
because aggravated robbery includes an element of at least threatened bodily injury,
facilitation of aggravated robbery also includes such an element). Because both of the
Defendant’s prior convictions for attempted robbery and facilitation of first degree
murder included an element of actual or threatened bodily injury or serious bodily injury,
the trial court properly considered them to be separate convictions and found that the
Defendant was a Range II multiple offender.

As a Range II, multiple offender convicted of a Class C felony, the Defendant’s
applicable range of sentence was six to ten years. T.C.A. § 40-35-112(b)(3). The trial
court imposed a within-range sentence of nine years. In his brief, the Defendant states
that he “believes that [the] record did not support a sentence over the minimum.” The
Defendant, however, fails to present any argument or authority to support his claim. He
does not argue that the trial court misapplied the enhancement factor or failed to apply
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any applicable mitigating factors. To the extent that the Defendant is challenging the trial
court’s weighing of the applicable enhancement and mitigating factors, under Bise, “mere
disagreement with the trial court’s weighing of the properly assigned enhancement and
mitigating factors is no longer a ground for appeal.” Bise, 380 S.W.3d at 706.

In sentencing the Defendant, the trial court considered the principles of
sentencing, the nature and circumstances of the offense, and the applicable enhancing and
mitigating factors. Accordingly, the trial court did not abuse its discretion in sentencing
the Defendant to the within-range sentence of nine years.

2. Manner of Service

The Defendant asserts that the trial court erred in ordering him to serve his
sentence in confinement. The Defendant, however, did not raise this argument during the
sentencing hearing and did not support his claim in his brief with argument or any
citation of authority. Nevertheless, we conclude that the trial court properly imposed a
sentence of incarceration.

A defendant “who is an especially mitigated or standard offender convicted of a
Class C, D, or E felony[ ] should be considered as a favorable candidate for alternative
sentencing options in the absence of evidence to the contrary.” T.C.A. § 40-35-
102(6)(A). Additionally, a defendant who receives a sentence of ten years or less may be
eligible for probation. Id. § 40-35-303(a). However, the defendant bears the burden of
establishing that he or she is a suitable candidate for probation. Id. § 40-35-303(b).
“This burden includes demonstrating that probation will ‘subserve the ends of justice and
the best interest of both the public and the defendant.’” Carter, 254 S.W.3d at 347
(quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App. 1997)). In
determining whether full probation is appropriate, the trial court “may consider the
circumstances of the offense, the defendant’s potential or lack of potential for
rehabilitation, whether full probation will unduly depreciate the seriousness of the
offense, and whether a sentence other than full probation would provide an effective
deterrent to others likely to commit similar crimes.” State v. Boggs, 932 S.W.2d 467, 477
(Tenn. Crim. App. 1996).

In determining whether incarceration is an appropriate sentence, the trial court
should consider whether:

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

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 (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.

T.C.A. § 40-35-103(1)(A)-(C). Additionally, the trial court should consider the
defendant’s potential or lack thereof for rehabilitation or treatment in determining
whether an alternative sentence is warranted. Id. § 40-35-103(5). This court reviews the
denial of an alternative sentence that falls within the appropriate range and reflects that
the decision was based on the purposes and principles of sentencing under an “abuse of
discretion standard, accompanied by a presumption of reasonableness.” State v. Caudle,
388 S.W.3d 273, 278-79 (Tenn. 2012).

The trial court did not make specific findings regarding the determinations set
forth in Tennessee Code Annotated section 40-35-103(1)(A)-(C). Nevertheless, we
conclude that the record supports the trial court’s imposition of a sentence of
confinement. As a Range II, multiple offender, the Defendant was not considered a
favorable candidate for an alternative sentence. See T.C.A. § 40-35-106(6)(A). The
Defendant has prior felony convictions for facilitation of first degree murder and
attempted robbery for which he was sentenced to terms of incarceration. He incurred 106
rule infractions while incarcerated for these convictions. While released on bond for the
firearm offense, he was charged with the misdemeanor offenses of harassment and simple
possession of marijuana and later convicted of the offenses. After the Defendant’s bond
was revoked, he tested positive for marijuana. He then attempted to prevent witnesses for
the State from attending the trial. Accordingly, “[c]onfinement is necessary to protect
society by restraining [the Defendant] who has a long history of criminal conduct. Id. §
40-35-103(a)(A). The trial court properly sentenced the Defendant to a term of
incarceration.

CONCLUSION

Based on our review of the record and the applicable law, we affirm the judgment
of the trial court. We note that the Defendant was convicted pursuant to Tennessee Code
Annotated section 39-17-1307(b)(1)(A), but the judgment form reflects a conviction
under section 39-17-1307(c). We accordingly remand for correction of the judgment
form.

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 ____________________________________
JOHN EVERETT WILLIAMS, JUDGE

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