08/21/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 25, 2017 at Knoxville
STATE OF TENNESSEE v. LEON DENTON and DEVAN DENTON
Appeal from the Criminal Court for Shelby County
No. 12-02872 James M. Lammey, Judge
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No. W2016-00910-CCA-R3-CD
___________________________________
After a jury trial, the defendants, Leon Denton and Devan Denton, were convicted of
three counts of aggravated rape, one count of facilitation of aggravated rape, one count of
facilitation of especially aggravated robbery, and two counts of facilitation of aggravated
robbery. On appeal, the defendants assert the evidence was insufficient to support their
convictions, arguing the State failed to overcome the defense of duress. The defendants
also claim their right to a speedy trial was violated. Independently, Leon Denton argues
his convictions violate double jeopardy. Following our review, we affirm the judgments
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.
Claiborne Ferguson, Memphis, Tennessee, for the appellant, Leon Denton.
Shannon M. Davis, Memphis, Tennessee, for the appellant, Devan Denton.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Josh Corman,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
This case involves five perpetrators and three victims. In the early morning hours
of October 16, 2011, Leon Denton, Devan Denton, Antonio Howard, James Kerrigan,
and Brian Norwood committed several crimes against three female victims.1 As a result,
the five men were jointly indicted on May 31, 2012 in Indictment No. 12-02872 for six
counts of aggravated rape (Counts 1 through 6), one count of especially aggravated
robbery (Count 7), two counts of aggravated robbery (Counts 8 and 9), and three counts
of aggravated assault (Counts 10, 11, and 12).2
At the various requests of the five co-defendants, the trial date in this matter was
reset multiple times over the next two years. On February 5, 2014, the trial court set a
final trial date for September 29, 2014. At the February resetting, the State announced its
intent to possibly sever some of the defendants prior to trial. First, however, Antonio
moved to sever his case from his co-defendants, and the State agreed. The trial court
granted severance, and Antonio was tried and convicted on September 29, 2014.
Subsequently, Leon filed a motion to dismiss claiming the trial court “improperly severed
him out of the trial and thus violated his speedy trial rights and the case has now been
tried to a jury, thus implicating double jeopardy/improper severance.” The trial court
denied Leon’s motion, and the present defendants were tried together on August 31,
2015.3
All three victims, K.W., L.G., and C.C., testified at the defendants’ trial.4 The trial
began with testimony from K.W. who explained that on October 15, 2011, L.G. and C.C.
came to her apartment at the Mount Moriah Trails Apartments in Shelby County before
going to a nightclub around 10:00 or 11:00 p.m. While at the club, L.G. ordered one
drink. K.W. stated none of the women were intoxicated when they left the club around
2:00 or 3:00 a.m. As the three friends left the club that night, L.G. asked a man in the
parking lot for a cigarette lighter. The man, whom the women later learned to be
Antonio, gave L.G. a lighter and the two began talking. The conversation led to the
women agreeing to hang out with Antonio and James at K.W.’s apartment. The men and
the women drove towards K.W.’s apartment in separate cars. Antonio motioned for the
women to stop at a gas station. When they stopped, the women realized five men in two
separate cars were actually following them to the apartment. These men included
1
Because the defendants share the same last name, we will refer to each defendant and co-
defendant by his first name. No disrespect is intended.
2
Counts 1, 4, 10, 11, and 12 were dismissed as to both defendants before trial.
3
Prior to trial, Brian Norwood and James Kerrigan resolved their cases and agreed to testify for
the State.
4
It is the policy of this Court to refer to victims of sexual abuse by their initials. However, for
consistency, we have referred to all of the victims by their initials.
-2-
Antonio, James, Brian, and the defendants. The men bought beer and cigarillos at the gas
station, and the group continued to K.W.’s apartment.
At the apartment, the three women, Antonio, and Brian sat at a table while James
and the defendants sat in the living room. The group smoked marijuana and drank beer
for approximately one hour. However, within a span of about twenty minutes, a gun fell
from each of Antonio’s and Brian’s pockets, changing the mood of the evening. K.W.
explained when Antonio’s gun fell out of his pocket, she did not know what to do.
Shortly thereafter, Brian’s gun fell out of his pocket. As a result, K.W. asked everyone to
leave because it was “getting late.” Leon, Devan, Brian, and James moved towards the
door, but Antonio asked to use the restroom. When Antonio came out of the restroom, he
had his “gun drawn” and yelled, “This is a robbery.” Antonio ordered the women to take
off their clothes. K.W. initially thought he was joking, but upon the realization that he
was not, told Antonio to take whatever he wanted. Antonio hit her in the face three times
fracturing her eye socket. K.W. then lost consciousness.
L.G. testified that she realized Antonio was not joking when he ordered her, K.W.,
and C.C. to take off their clothes. Antonio grabbed her and “twirled [her] around” in
front of the other men, asking if anyone liked what they saw. Antonio then pointed his
gun at her and “made [her] perform oral sex [on Antonio] on the couch in front of them.”
L.G. was then forced into the bedroom with Antonio and Leon. She explained what
happened in the bedroom as follows:
[Antonio] led me to the room, and he had the gun. And he told me
to get down and give him some head. And then [Antonio] got another guy
in there with him to - so he could get some head. [Antonio] got behind me
and started having sex with me; and then [Leon] got in front, and I had to
give him oral sex. And the guy that I had to give oral sex to ejaculated in
my mouth, and made me swallow.
L.G. testified that Antonio did not threaten Leon into engaging in oral sex with her and
Antonio did not point his gun at him. Rather, L.G. stated Leon “made like he didn’t want
to, but he did it. I mean, he didn’t pull back.” Devan then entered the bedroom. Antonio
said, “Oh man, get you some,” and L.G. was forced to perform oral sex on Devan. She
again explained Antonio did not threaten or force Devan into receiving oral sex from
L.G., but rather, “there was no pull back. He did it.”
C.C. testified that she turned her head while Antonio forced L.G. to give him oral
sex on the couch. When Antonio and Leon took L.G. to the bedroom, C.C. was left in the
living room with Devan, James, and Brian who was standing by the door. K.W. was
unconscious on the floor. C.C. watched as Antonio and Leon walked to the bedroom.
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C.C. testified that she did not hear Antonio threaten Leon, explaining their interaction
“wasn’t like anything forceful.” She further stated, “[Leon’s] decision was to go” into
the bedroom.
After Leon, Antonio, and L.G. left the living room, C.C. noticed K.W. “start[] to
come to.” K.W. asked Brian for help, but he did not move. As a result, C.C helped K.W.
onto the couch and got ice for K.W.’s eye which was swollen shut. C.C. realized that
while she was in the kitchen getting ice, Devan left the living room. Antonio then
reentered the living room and said, “Let’s get all the stuff.” Antonio ordered the women
into the bathtub where they stayed for approximately ten minutes. When the women
exited the bathroom, armed with brushes and hairspray, they saw the apartment door
wide open and the men were gone. The women quickly dressed and drove to L.G.’s
mother’s home where the police and an ambulance were called.
Co-defendants, James and Brian, testified against the defendants at trial. James
explained Antonio is his brother and Leon and Devan are his cousins. He stated he
bumped into Antonio, Brian, Leon, and Devan on Beale Street the night of October 15,
2011. The men left Beale Street and went to a nightclub where they met the female
victims in the club parking lot. According to James, the two groups agreed to go back to
K.W.’s apartment “to hang out and have fun.” After stopping at a gas station, the groups
arrived at the apartment where they smoked marijuana and drank beer. James stated that
both Antonio and Brian’s guns fell out of their pockets, but the mood among the groups
did not change until Antonio “upped his gun.” Antonio then controlled the evening.
Specifically, James testified Antonio came out of the bathroom with his gun raised,
telling the women to get on the ground and get naked. When K.W. laughed, Antonio hit
her and she fell to the ground. Antonio then made L.G. give him oral sex, while the men
were “just standing on the wall.” According to James, Antonio “asked all of [the men]
did we like what we see. We told him, ‘No,’ that we didn’t get down like that. That’s
when he said, more for him.”
James saw Antonio and Leon go to the bedroom with L.G. He stated Antonio “put
his arm around [Leon] and told him to come to the back with him” absent any threats or
use of force. James heard “sexual moans” coming from the bedroom and realized
Antonio was raping L.G. During the rape, Devan stated he was ready to leave and went
to the bedroom to get Leon. As a result, “Antonio came out [of the bedroom] and told
him we weren’t going nowhere until he gets what he wants.” James stated “[a]fter that,
[Antonio] went back into the room and continued to rape the girl.” Antonio came out of
the bedroom again “telling [them] to get the TVs.” As Antonio gave the order, Devan
entered the bedroom. James soon entered the bedroom in order to take a TV and saw
“[t]he girl performing oral sex on [Devan].” Only Devan and L.G. were in the bedroom
at the time.
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Antonio then told the women to get into the bathtub, threatening to kill K.W. if
they did not comply. James testified that he stepped in between Antonio and K.W.,
telling Antonio he would not let him kill her, but Antonio pushed him out of the way.
With the women in the bathtub, the men left the apartment with two TVs, a laptop, and
three cell phones. After they left the apartment, James ended up with the three stolen cell
phones. The police were able to track one of the phones, and James was arrested on
October 17, 2011. James stated he was scared of Antonio and believed if he did not do
what Antonio asked, someone would get hurt.
James also testified about a conversation he had with Leon days before trial.
According to James, Leon asked him to change his testimony regarding how Leon ended
up in the bedroom with Antonio and L.G. At Antonio’s trial, James testified that the
interaction between Antonio and Leon was “friendly” as they walked to the bedroom
where Leon then received oral sex from L.G. However, Leon asked James to testify at
his trial that “Antonio made [Leon] go to the back with him” rather than Leon went to the
bedroom “freely.” Ultimately, James testified, “It wasn’t just friendly/friendly, though;
but I wouldn’t say he made him go to the back. But when he went to the back, I just seen
him go to the back.”
Brian also testified. He explained that as they arrived at K.W.’s apartment,
Antonio told him, “[w]e don’t know these girls, so you might want to bring your gun in
with you.” Brian complied and noticed Antonio also took a gun into the apartment.
While they were hanging out, one of the women noticed Antonio’s gun and Antonio
showed it to her as a result. Brian later leaned back in his chair which caused his gun to
fall out of his pocket. Brian realized the women were scared. Soon, “Antonio pulled his
gun out and pointed it at the girl . . . that got hit in the eye, and pretty much told them - he
said, ‘You think I’m playin?’” Antonio then hit K.W. three times, knocking her
unconscious. Antonio made the women take their clothes off, he twirled L.G. around and
asked if the men would “like some of this.” Antonio then forced L.G. to give him oral
sex on the couch in front of everyone while he was holding a gun.
Brian described the interaction between Antonio and Leon as the two men walked
to the bedroom with L.G. as follows:
He got up, and he told the girl to go to the back room - to the
backroom, and he told Leon - he told Leon - he pretty much asked us,
“Y’all want some of this?” again. And everybody was like, “No.” And he
said, “Leon, you know, come on and get you some.” He was like, “I’m
[a]ll right.” And then he had him on a choke like - “Quit acting like a
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bitch,” is what he told him - “You’re acting like a bitch,” or whatever, and
they all walked back in the room.
Though Brian did not remember Antonio pointing his gun at Leon, he considered
Antonio’s language threatening. During cross-examination, Brian acknowledged that
Antonio focused on Leon as he was forcing L.G. into the bedroom and “pretty much told
him, ‘Hey, bitch, come get you some head.’”
Brian stated Antonio was in control of the situation; however, nothing prevented
him from walking out the door. Instead, Brian stated he “was literally frozen” during the
criminal activity. When Antonio told him to take a TV and he refused, Antonio put a gun
to K.W.’s head and threatened to shoot her. James intervened, and Antonio ordered the
women into the bathtub. As the men left the apartment, Antonio took a laptop, Leon took
a TV, and James took a TV and three cell phones. Brian stated as they drove away from
the apartments, Antonio and Leon told him L.G. “said it was okay” for the men to have
sex with her and “that Devan had got some oral sex, too.” Brian and Devan turned
themselves into police on October 18, 2011.
Lieutenant Celia Tisby of the Memphis Police Department was assigned to the
case after the victims contacted police on October 16, 2011. Lieutenant Tisby took
statements from the three victims and located the stolen cell phones which led to James’s
arrest. She also took DNA samples from Leon, Devan, and Antonio, the buccal swabs of
which were entered into evidence at trial. Lieutenant Tisby read Devan’s statement into
the record at trial. In the statement, Devan explained his and Leon’s involvement in the
crimes against the three victims:
I was in shock when [Antonio] pulled the gun. I don’t know if he
flipped out or got a mental or what. The lady who was by the door, he told
her to “Shut the fuck up,” and he hit her in the face because she was
talking. I think he hit her with his hand. He hit her one time, and she kept
talking, and he hit her two more times. He says, “This bitch think I am
playing and hit her one more time and knocked her out, and she just laid
there.”
He told me and everybody else to get the lady’s flat-screen TVs, and
me and my friend said, “No, we didn’t want nothin’ because we ain’t part
of this shit.” He told us we were gonna make him shoot one of these
bitches if we didn’t grab a TV. We still didn’t move. We were froze. He
said - he said, “I got to get what I came for.” He took the female who was
red, about five/eight, and he took her and strut her around and said - he
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said, “Do you all like this?” He took her to the couch, and he made her
suck him up, and he asked anyone else if they wanted any, and we - no one
said anything. And he said, “Okay. More for me.”
He finished, and then he had the gun in his hand and grabbed my
little brother [Leon]. He wrapped his right arm around my brother’s neck
and had the gun in his left hand and told him to come here so he can holler
at him, and they went to the bedroom with the girl who had just sucked him
off.
The lady that was knocked out, she was snoring, and her other friend
was sitting there. When she came to consciousness, she was still kind of
woozy, and Brian helped her sit down. She said she didn’t want anything
in here, “Just take everything.” I [told] her, we didn’t want anything to do
with this shit. She said she just want her and her friends to be safe. That’s
what made me go in the backroom.
I walked in, and Antonio was raping this lady. It was from the rear.
She was on the floor on all fours. I walked in there. I see he still have a
gun, but it is in his right hand now. My brother was sitting on her bed, and
she was sucking - performing oral sex on my brother. My uncle looked
around and said, “Oh, you want some of this too.” He jumped up out of
her, and he got up out of her, and he told her to go over there and, “Suck
my n**** up.”
She stopped doing my brother, and he made her do me. She
unzipped my pants and pulled out my penis, and she started giving me oral
sex. My brother was buttoning up his pants. Antonio left the room, and I
asked her if she really wanted to be doing this. She looked at me and said,
“No.” I told her to get up, and it didn’t seem right to me as well. She
stopped. As I was coming out of the room, my uncle had pulled the gun at
this lady he had just knocked out, and I don’t know - I don’t, for sure, but I
think my brother got in between her, and I heard him say, “I’m fixin’ to
shoot this bitch.”
He told little brother Kendale to grab the flat screen; and my little
brother said he was not doing it because he was not part of that. The lady
said, “Just take it - take it” because she wanted him out of there. My
brother, Leon, Kendale grabbed the flat screens. That’s the only thing I
saw taken. He made his little brother stuff one TV in my car, and my
brother stuffed one in Brian’s car.
-7-
Regarding his perception of L.G.’s consent, Devan stated: “She can’t give consent if
someone has her at gunpoint.” Lieutenant Tisby testified that in Devan’s statement, he
did not indicate he was forced into participating in the criminal activity of October 16,
2011.
Margaret McCallum, a board certified sexual assault nurse examiner, performed a
rape kit on L.G. on October 16, 2011 collecting oral, vaginal, and anal samples from the
victim based upon the information L.G. provided regarding her assault. Donna Nelson,
an expert in DNA testing and an agent with the Tennessee Bureau of Investigation,
analyzed the rape kit with the buccal swabs of Leon, Devan, and Antonio. Agent
Nelson’s report, which was entered into evidence, indicated Leon’s DNA profile matched
L.G.’s rape kit.
At the close of the evidence, the jury returned guilty verdicts against each
defendant for three counts of aggravated rape as charged in Counts 2, 3 and 6; one count
of the lesser-included offense of facilitation of aggravated rape in Count 5; one count of
the lesser-included offense of facilitation of especially aggravated robbery in Count 7;
and two counts of the lesser-included offense of facilitation of aggravated robbery in
Counts 8 and 9.5 The trial court sentenced Devan, a Range I, standard offender, to an
effective fifteen-year sentence. The trial court also sentenced Leon, a Range I, standard
offender, to an effective fifteen-year sentence. This joint appeal followed.
ANALYSIS
On appeal, the defendants challenge the sufficiency of the evidence for their
convictions by way of arguing the State “failed to overcome the defense of duress.” The
defendants also allege they were “improperly severed” at trial which violated their right
to a speedy trial. Independently, Leon asserts due to improper severance, his convictions
violate double jeopardy. The State argues sufficient evidence exists to sustain the
defendants’ convictions, the defendants’ right to a speedy trial was not violated, and
double jeopardy did not attach to Leon’s convictions. Upon our thorough review of the
record, we agree with the State and affirm the judgments of the trial court.
I. Sufficiency of the Evidence
5
At the sentencing hearing, the trial court dismissed Leon Denton’s convictions in Counts 8 and 9
noting they were incorrectly recorded on the verdict forms by the jury.
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When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Tenn. R. App. P. 13(e) (“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.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our Supreme Court has 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.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). “A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In reviewing the defendants’ duress argument, we apply the following statute:
(a) Duress is a defense to prosecution where the person or a third
person is threatened with harm that is present, imminent, impending and of
such a nature to induce a well-grounded apprehension of death or serious
bodily injury if the act is not done. The threatened harm must be
continuous throughout the time the act is being committed, and must be one
from which the person cannot withdraw in safety. Further, the desirability
and urgency of avoiding the harm must clearly outweigh the harm sought to
be prevented by the law proscribing the conduct, according to ordinary
standards of reasonableness.
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Tenn. Code Ann. § 39-11-504. “If admissible evidence supporting a duress defense is
introduced, the State must negate the defense beyond a reasonable doubt before the
defendant may be convicted.” State v. Green, No. W2007-00570-CCA-R3-CD, 2008
WL 2115363, at *9 (Tenn. Crim. App. May 19, 2008) (citing Tenn. Code Ann. § 39-11-
201(a)(3) (2003)).
As to Leon’s involvement in the crimes, the record shows that he walked to the
bedroom with Antonio moments after Antonio received oral sex from L.G. on the couch.
According to L.G., C.C., and James, Leon went to the bedroom freely absent any threats
or use of force from Antonio. Once in the bedroom, Antonio raped L.G. from behind
while Leon received oral sex. L.G. stated Leon “didn’t pull back,” ejaculated in her
mouth, and forced her to swallow. Furthermore, James testified that Leon tried to
convince James to change his original testimony, in which James stated Leon went to the
bedroom freely, to now indicate Leon was actually forced into the bedroom by Antonio.
James, however, ultimately testified: “I wouldn’t say [Antonio] made [Leon] go to the
back.”
Further, no testimony exists indicating Antonio pointed a gun at Leon during the
rape or robbery of the victims. Though Devan’s statement and Brian’s testimony indicate
Antonio used threatening language towards Leon as they walked to the bedroom, it is
apparent the jury weighed both Devan’s and Brian’s statements against the vast amount
of evidence produced against the defendant at trial, and found in favor of the State. This
Court will not reweigh the factual and credibility determinations by the jury. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Regarding the robbery convictions, the
three victims testified that the men took their cell phones along with K.W.’s laptop and
two TVs. James and Brian both testified that Leon took a TV as they exited the
apartment, absent any threats from Antonio. The record contains sufficient evidence
supporting the jury’s finding that the State met its burden of proof regarding Leon’s
defense of duress at trial.
Similarly, regarding Devan’s involvement in the crimes, the record makes clear
Devan walked to the bedroom on his own and received oral sex from L.G. while they
were the only two in the room. No evidence exists to suggest Devan was forced or
threatened into entering the bedroom by Antonio. L.G. testified “there was no pull back”
from Devan in engaging in oral sex with her. Furthermore, Brian testified nothing
prevented Devan from leaving the apartment during the criminal activity. Additionally,
no evidence exists that Antonio pointed a gun, threatened, or used force against Devan
during his participation in the rape and robberies of the three victims. Though the
evidence indicates Antonio was in charge of the situation and James feared someone
would get hurt if they did not do what Antonio wanted, it is clear the jury weighed this
general premise against the evidence produced against the defendants at trial, and found
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in favor of the State. Again, this Court will not reweigh the evidence. Dorantes, 331
S.W.3d at 379.
Furthermore, the record shows the trial court instructed the jury on the defense of
duress stating “[i]f evidence is introduced supporting the defense of duress, the burden is
on the state to prove beyond a reasonable doubt that the defendants did not act from
duress” in order for the defendants to be found guilty. We presume the jury followed the
trial court’s instructions. State v. Young, 196 S.W.3d 85, 111 (Tenn. 2006). And further,
the jury’s guilty verdicts demonstrate that it determined the State rebutted the duress
defense beyond a reasonable doubt, and the record supports the jury’s conclusion. The
defendants are not entitled to relief as to this issue.
To the extent that the defendants challenge the sufficiency of the evidence, we
conclude that their claim is without merit. The defendants were convicted of aggravated
rape and the facilitation of aggravated rape, aggravated robbery, and especially
aggravated robbery. As charged in the present indictment, an aggravated rape “is
unlawful sexual penetration of a victim by the defendant” through force or coercion “and
the defendant is armed with a weapon.” Tenn. Code Ann. § 39-13-502. Sexual
penetration is defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or
any other intrusion, however slight, of any part of a person’s body or of any object into
the genital or anal openings of the victim’s, the defendant’s, or any other person’s body,
but emission of semen is not required.” Tenn. Code Ann. § 39-13-501. A defendant is
also guilty of aggravated rape when “[t]he defendant is aided or abetted by one (1) or
more other persons” and “[f]orce or coercion is used to accomplish the act.” Id.
Applicable to the remainder of the defendants’ convictions, “[a] person is
criminally responsible for the facilitation of a felony, if, knowing that another intends to
commit a specific felony, but without the intent required for criminal responsibility under
§ 39-11-402(2), the person knowingly furnishes substantial assistance in the commission
of the felony.” Tenn. Code Ann. § 39-11-403. Robbery is “the intentional or knowing
theft of property from the person of another by violence or putting the person in fear.”
Tenn. Code Ann. § 39-13-401. An aggravated robbery occurs when a robbery is
“[a]ccomplished with a deadly weapon . . . or [w]here the victim suffers serious bodily
injury.” Tenn. Code Ann. § 39-13-402. When “accomplished with a deadly weapon” or
if “the victim suffers serious bodily injury,” a robbery is elevated to especially aggravated
robbery. Tenn. Code Ann. § 39-13-403. In the present indictment, the State alleged the
defendants committed robbery “while acting in concert with two (2) or more other
persons.” Tenn. Code Ann. § 39-12-302(a). The proof at trial, viewed in the light most
favorable to the State, showed that the defendants participated in the robbery of C.C., the
robbery and assault of K.W. with the use of a gun, and the oral rape of L.G. absent any
coercion or threats from Antonio.
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Detailed in the record is the defendants’ participation in the criminal activity
initiated by Antonio on October 16, 2011. Not only did Leon and Devan both orally rape
L.G., but the record shows they did so absent any force or coercion from Antonio. Leon
received oral sex from L.G. while Antonio raped her. Leon ejaculated in her mouth and
forced her to swallow. Devan then forced L.G. to perform oral sex in the bedroom while
Antonio was in the living room. After raping L.G., the defendants joined their co-
defendants in taking three cell phones, two TVs, and a laptop from the victims. Brian
testified the defendants could have left the apartment, but did not. Though Antonio
wielded a gun during the crimes, the evidence shows the gun was never turned on either
defendant and Antonio’s threats of violence were directed solely at the female victims.
Accordingly, the evidence was sufficient to support the defendants’ convictions for
aggravated rape, and their convictions for the facilitation of aggravated rape, aggravated
robbery, and especially aggravated robbery. The defendants are not entitled to relief.
II. Severance, Speedy Trial, and Double Jeopardy
The defendants argue the trial court improperly severed co-defendant Antonio
over their objection which led to a violation of their right to a speedy trial. Further, Leon
argues the improper severance also implicated his right against double jeopardy because
Antonio was convicted prior to Leon under the same indictment. Upon our review, the
record indicates these arguments are wholly without merit.
The record on appeal is absent any severance motions filed by the defendants or
any of their co-defendants. Instead, the record shows Antonio made an oral motion to
sever his case from his co-defendants on the day of trial. The State agreed, the trial court
granted severance, and Antonio was convicted under Indictment No. 12-02872.
Subsequently, Leon filed a motion to dismiss on December 2, 2014, citing improper
severance from Antonio and a violation of his right to a speedy trial and against double
jeopardy. Leon’s motion was denied by the trial court on January 14, 2015. The record
is absent any motions filed by Devan regarding improper severance or asserting his right
to a speedy trial.
Upon our review of the transcript of the hearing on Leon’s motion to dismiss, it is
clear he tried to object to Antonio’s severance motion at the September 29, 2014 trial
setting but was denied by the trial court for lack of standing. This holds true on appeal.
Neither Leon nor Devan moved to sever, and thus, they have no standing to now
challenge Antonio’s motion on appeal. Tenn. R. Crim. P. 14; see State v. Lajuan
Harbison, No. E2015-00700-CCA-R3-CD, 2016 WL 4414723, at *15 (Tenn. Crim. App.
Aug. 18, 2016), appeal granted (Dec. 14, 2016); cf. State v. Cothran, 115 S.W.3d 513,
520-21 (Tenn. Crim. App. 2003) (standing to bring a motion to suppress evidence
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subsequent to a search stems from a defendant’s legitimate expectation of privacy in the
place or thing searched). Because the defendants have no standing to challenge
Antonio’s severance motion upon which they base their present arguments, these
arguments must fail.
Regardless, we will briefly discuss the merits of the defendants’ speedy trial
argument. Criminal defendants are “entitled to a speedy trial” under both the United
States and Tennessee Constitutions and Tennessee statutory authority. U.S. Const.
amend. VI; Tenn. Const. art. I, § 9; Tenn. Code Ann. § 40-14-101; State v. Utley, 956
S.W.2d 489, 492 (Tenn. 1997). The trial court may dismiss an indictment if
“unnecessary delay occurs in . . . bringing a defendant to trial.” Tenn. R. Crim. P.
48(b)(2). To determine whether a speedy trial violation has occurred, the trial court must
balance the factors outlined in Barker v. Wingo, which include: the length of delay, the
reasons for delay, the defendant’s assertion of the right to a speedy trial, and the prejudice
resulting from the delay. 407 U.S. 514, 530-32 (1972); see State v. Simmons, 54 S.W.3d
755, 759 (Tenn. 2001) (adopting the Barker test in Tennessee). Dismissal is warranted if
the trial court finds a defendant has been denied a speedy trial under the Barker analysis.
Barker, 407 U.S. at 522. This Court reviews the trial court’s determination regarding
whether the defendant’s right to a speedy trial was violated for an abuse of discretion.
State v. Hudgins, 188 S.W.3d 663, 667 (Tenn. Crim. App. 2005) (citing State v.
Jefferson, 938 S.W.2d 1, 14 (Tenn. Crim. App.1996)).
Here, a complete Barker analysis is not warranted primarily because the record
shows the defendants failed to assert their right to a speedy trial at any time prior to trial.
Accordingly, this issue has been waived. See Tenn. R. App. P. 36 (“Nothing in this rule
shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.”). Despite the defendants’ waiver, the defendants cannot meet the
Barker requirements.
Generally, we note, the defendants’ trial began on August 31, 2015, which was
well over one year after the date of their indictment on May 31, 2012. However, the
record shows the reason for the delay of trial was due to the numerous requests of the
defendants and co-defendants seeking to reset the trial as each attempted to investigate,
prepare, or resolve their cases. The defendants’ trial was not “delayed” by any action of
the State. As such, no speedy trial violation exists. Additionally, the defendants assert a
speedy trial violation emerged after the severance of co-defendant Antonio. Accordingly,
their speedy trial complaint did not arise until September 29, 2014, when the State tried
Antonio. The defendants were tried less than one year later on August 31, 2015, which
does not trigger Barker.
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As noted above, the record shows the defendants failed to assert their right to a
speedy trial, again failing under Barker. Further, the defendants have failed to show
prejudice resulting from the timing of their trial. Merely stating in their briefs that
“memories had faded and witnesses became unavailable” is not sufficient. State v.
Harold Morris, No. E2013-00803-CCA-MR3-CD, 2014 WL 12678224, at *7 (Tenn.
Crim. App. May 6, 2014) (“A blanket statement that ‘gives no indication as to the content
and relevance of the lost testimony’ is not sufficient to establish prejudice.”)
(citing United States v. Harris, 566 F.3d 422, 433 (5th Cir. 2009). Accordingly, the
defendants are not entitled to any relief.
Out of an abundance of caution, we also note, “[t]he law on a motion for
severance includes that ‘[t]he grant or denial of a motion for severance of defendants is a
matter that rests within the sound discretion of the trial court, and [the reviewing court]
will not disturb the trial court’s ruling absent clear abuse of that discretion.’” Harbison,
2016 WL 4414723, at *16 (internal citations omitted). The defendants have provided no
evidence of any abuse of discretion by the trial court in granting Antonio’s motion to
sever. Absent abuse, our appellate review of this issue is again halted.
Regarding Leon’s double jeopardy argument, he again is not entitled to relief. His
argument stems from his assertion that Antonio was improperly severed from his case
absent a hearing. Leon asserts that because the State proceeded to trial against Antonio
after he was severed from the defendants, double jeopardy attached to the indictment
under which Leon was also charged. This argument is contrary to logic. The right
against double jeopardy ensures “[t]hat no person shall, for the same offense, be twice put
in jeopardy of life or limb.” Tenn. Const. art. I, § 10. Our Supreme Court has stated,
“[p]ractically all authorities agree that jeopardy begins when the accused is put upon trial
before a court of competent jurisdiction, upon an indictment sufficient in form and
substance to sustain a conviction, and the jury has been impaneled and sworn.” Etter v.
State, 205 S.W.2d 1, 3 (1947). It is abundantly clear in this case that Antonio properly
severed his case from his co-defendants, and was tried and convicted for his criminal
acts. Jeopardy did not attach to Leon’s indictment after Antonio’s trial, despite the two
sharing Indictment No. 12-02872. Rather, less than one year later, Leon was tried and
convicted for his participation in the crimes against K.W., L.G., and C.C. Again, Leon
has no standing to challenge Antonio’s severance motion from which his double jeopardy
argument stems. Tenn. R. Crim. P. 14; see Harbison, 2016 WL 4414723, at *15; cf.
Cothran, 115 S.W.3d at 520-21. This argument is without merit.
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CONCLUSION
Based upon the foregoing authorities and reasoning, the judgments of the trial
court are affirmed.
____________________________________
J. ROSS DYER, JUDGE
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