IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 28, 2016 Session

STATE OF TENNESSEE v. ROBERT ANDREW HAWKINS

Appeal from the Criminal Court for Claiborne County

No. 2013-CR-1631 E. Shayne Sexton, Judge

No. E2015-01542-CCA-R3-CD – Filed September 19, 2016

The Defendant, Robert Andrew Hawkins, was convicted by a Claiborne County jury of 

aggravated kidnapping and two counts of aggravated assault. For these offenses, he 

received an effective sentence of sixteen years‟ in the Tennessee Department of 

Correction. On appeal, he argues that the trial court erred by denying his motion for a 

mistrial and abused its discretion by imposing consecutive sentences. Upon review, we 

affirm the judgments of the trial court. 

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY,JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Jonathan M. Holcomb, Morristown, Tennessee, for the Defendant-Appellant, Robert 

Andrew Hawkins.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; 

Lori Phillips-Jones, District Attorney General; and Amanda H. Sammons, Matthew 

McClung, and Graham E. Wilson, Assistant District Attorneys General, for the Appellee, 

State of Tennessee.

OPINION

Four days after the victim, Anna Falce, required her live-in boyfriend, Hawkins, to 

vacate her home, he returned, held her hostage for over three hours, and viciously 

attacked her. As a result of the attack, the Claiborne County Grand Jury indicted 

Hawkins for aggravated burglary in count one, especially aggravated kidnapping in count 

two, aggravated domestic assault in counts three and four, and coercion of a witness in 

count five. After a trial, Hawkins was acquitted in counts one and five, convicted of the 

lesser included offense of aggravated kidnapping in count two, and convicted of 

aggravated assault in counts three and four. In this appeal, Hawkins does not challenge 
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the sufficiency of the evidence to support any of his convictions. Rather, he argues only 

that the trial court improperly denied his request for a mistrial and abused its discretion in 

ordering consecutive sentencing. As such, we will outline the facts as pertinent to the 

issues raised in this appeal.

Prior to jury selection, Hawkins requested a mistrial because he was brought into 

court in handcuffs in view of the prospective jury panel. The circumstances surrounding 

this incident are not entirely clear from the record; however, it is undisputed that 

Hawkins was brought from the detention cell in the back of the courtroom while in 

handcuffs in view of at least some of the jurors. The trial court denied the motion and 

instead issued the following curative instruction to the jury:

[T]here may have been some ideas that the defendant may be incarcerated 

or may be on bail, whatever. Understand that the defendant‟s presence, 

wherever he is, whether he is incarcerated or at home on bail, is irrelevant 

at this point in the trial. You understand that the defendant is presumed 

innocent throughout the trial and only until the State has met the burden of 

proof beyond a reasonable doubt can the defendant be guilty. So whether 

or not he is incarcerated, whether or not he is at home on bail is irrelevant 

for your purposes. 

At the June 2, 2014 sentencing hearing, Hawkins‟ presentence report was 

introduced into evidence without objection. Hawkins‟ criminal history includes 

numerous felony and misdemeanor convictions in both Tennessee and Kentucky, 

including convictions for domestic assault, domestic violence, aggravated assault, and 

theft. 

The victim testified at the sentencing hearing that she suffered from severe panic 

attacks, feared being alone in her home, was forced to seek counseling, and missed

approximately a month of work as a result of the attack. The victim‟s twelve-year-old

daughter also suffered emotional damage from the attack and feared that Hawkins would

return and hurt the victim. The victim‟s mother, Rebecca Falce, also testified and echoed 

the sentiments of her daughter regarding the impact of the attack on both the victim and 

the victim‟s daughter.

Following the arguments of counsel, the trial court sentenced Hawkins as a Range 

I, standard offender and enhanced his sentence based on enhancement factor (1), that the 

defendant has a previous history of criminal convictions or criminal behavior in addition 

to those necessary to establish the appropriate range; (5), that the defendant treated or 

allowed a victim to be treated with exceptional cruelty during the commission of the 

offense; and (10), that the defendant had no hesitation about committing a crime when 
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the risk to human life was high. T.C.A. § 40-35-114(1), (5), (10). The trial court 

declined to find any mitigating factors and imposed a sentence of eleven years for 

aggravated kidnapping in count one and five years for each aggravated assault conviction 

in counts three and four. The court ordered the aggravated assault convictions to be 

served concurrently with each other but consecutively to the aggravated kidnapping 

conviction for a total effective sentence of sixteen years‟ in confinement. Hawkins filed 

a motion for new trial on July 2, 2014, which the trial court denied after a hearing on 

November 20, 2015. This timely appeal follows. 

ANALYSIS

I. Mistrial. Hawkins first argues that the trial court erred by denying his motion 

for a mistrial after he was brought in front of the jury in handcuffs. Hawkins 

acknowledges that the trial court issued a curative instruction, but asserts that the 

instruction “in no way could ever „un-ring the bell‟ of what the jury had seen.” The State 

responds that the trial court did not abuse its discretion in determining that a curative 

instruction was a sufficient remedy. We agree with the State. 

The decision to grant or deny a mistrial rests within the sound discretion of the 

trial court and will not be reversed absent an abuse of discretion. State v. Nash, 294 

S.W.3d 541, 546 (Tenn. 2009); State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004). A 

trial court should declare a mistrial “only upon a showing of manifest necessity.” 

Robinson, 146 S.W.3d at 494 (citing State v. Saylor, 117 S.W.3d 239, 250-51 (Tenn. 

2003)). “„In other words, a mistrial is an appropriate remedy when a trial cannot 

continue, or a miscarriage of justice would result if it did.‟” Saylor, 117 S.W.3d at 250 

(quoting State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000)). “„The purpose for 

declaring a mistrial is to correct damage done to the judicial process when some event 

has occurred which precludes an impartial verdict.‟” State v. Reid, 164 S.W.3d 286, 341-

42 (Tenn. 2005) (quoting State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 

1996)). The party seeking a mistrial has the burden of establishing the necessity for a 

mistrial. Reid, 164 S.W.3d at 342 (citing Williams, 929 S.W.2d at 388). In determining 

whether a trial court abused its discretion in granting or denying a mistrial, this court 

should consider the following factors: “(1) whether the State elicited the testimony, (2) 

whether the trial court gave a curative instruction, and (3) the relative strength or 

weakness of the State‟s proof.” State v. Welcome, 280 S.W.3d 215, 222 (Tenn. Crim. 

App. 2007) (citing State v. Lawrence Taylor, No. W2002-00183-CCA-R3-CD, 2003 WL 

402276, at *10 (Tenn. Crim. App. Feb. 14, 2003)). 

On the first day of Hawkins‟ trial, prior to the jury being sworn or selected, 

Hawkins was brought into the courtroom while wearing handcuffs. At oral argument, 

defense counsel estimated that Hawkins was handcuffed in the presence of the jury for 
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approximately thirty seconds before the handcuffs were removed. Nevertheless, trial 

counsel immediately moved for a mistrial. After argument from Hawkins‟ counsel and 

the State, the trial court denied the motion for a mistrial, issued a curative instruction to 

the jury, and explained its reasoning as follows:

The question really becomes to what extent might this jury have been 

unduly influenced by what they saw, how many saw it, how many didn‟t 

see it. Although, as [defense counsel] has stated, the defendant has the 

presumption of innocence and that would be maintained throughout the 

pendency of the trial . . . the Court not only will give the jury charge 

concerning reasonable doubt and presumption of innocence, I will give a 

pre-charge instruction to that effect as well. Before the jury ever begins 

working on this case, they will hear from the Court that the defendant is

presumed innocent and they are not to – and that presumption is not 

rebutted until the State has shown adequate evidence. [W]ithout saying 

more I‟m [going to] find that the motion for mistrial is overruled . . . I 

believe there has been no showing that [there] has been actual prejudice or 

harm done by anything within the Court concerning the handling of the 

defendant. 

Upon our review of the record, we conclude that the trial court did not abuse its 

discretion in issuing a curative instruction rather than granting Hawkins‟ motion for a 

mistrial. Significantly, Hawkins was not tried before a jury while wearing handcuffs or 

shackles. Rather, Hawkins was brought into the courtroom before the jury selection 

process began. This court has consistently distinguished between incidental sightings of 

a defendant in handcuffs or shackles and instances where a defendant is tried while 

wearing restraints. As this court stated in State v. Baker:

Common sense must prevail in such instances where a jury or jurors 

inadvertently see a defendant dressed in prison clothing. Reason dictates 

that they must know a person on trial is either on bail or in confinement 

during the course of a trial. 

751 S.W.2d 154, 164 (Tenn. Crim. App. 1987); see also State v. Groseclose, 615 S.W.2d 

142, 148 (Tenn. 1981); State v. Keele, 644 S.W.2d 435, 438 (Tenn. Crim. App. 1982); 

State v. Cyntoia Denise Brown, No.M2007-00427-CCA-R3-CD, 2009 WL 1038275, at 

*27 (Tenn. Crim. App. Apr. 20, 2009), perm. app. denied (Tenn. Sept. 28, 2009); State v. 

Charles Wade McGaha, No.E2006-01984-CCA-R3-CD, 2008 WL 148943, at *10 (Tenn. 

Crim. App. Jan. 16, 2008), perm. app. denied (Tenn. June 23, 2008); State v. James 

Wesley Daniels, No.E2006-01119-CCA-R3-CD, 2007 WL 2757636, at *6 (Tenn. Crim. 

App. Sept. 24, 2007), perm. app. denied (Tenn. Feb. 4, 2008); State v. Bobby W. 
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Lineberry, No.01C01-9412CC-00439, 1995 WL 441608, at *4 (Tenn. Crim. App., at 

Nashville, July 26, 1995). As in the aforementioned cases, Hawkins has failed to show 

that he was prejudiced by this incidental occurrence or that the jury failed to follow the 

curative instruction given by the trial court, as they are presumed to do. State v. Vanzant, 

659 S.W.2d 816, 819 (Tenn. Crim. App. 1983) (“The presumption is that a jury follows 

the instruction of the court.”) (citing Craig v. State, 524 S.W.2d 504 (Tenn. Crim. App. 

1974)). He is not entitled to relief. 

II. Consecutive Sentencing. Hawkins also challenges the trial court‟s imposition 

of an effective sentence of sixteen years in confinement. Hawkins does not challenge the 

length of any of his specific sentences and instead argues that the trial court abused its 

discretion imposing partial consecutive sentences. The State responds that the trial 

court‟s imposition of consecutive sentencing was well within its considerable discretion. 

We agree with the State. 

Where 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. 

T.C.A. § 40-35-115(a). The Tennessee Supreme Court has held, “[T]he 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 seven categories 

enumerated in code section 40-35-115(b). Those categories include:

(1) The defendant is a professional criminal who has knowingly devoted the 

defendant‟s life to criminal acts as a major source of livelihood; (2) The 

defendant is an offender whose record of criminal activity is extensive; (3) 

The defendant is a dangerous mentally abnormal person so declared by a 

competent psychiatrist who concludes as a result of an investigation prior to 

sentencing that the defendant‟s criminal conduct has been characterized by 

a pattern of repetitive or compulsive behavior with heedless indifference to 

consequences; (4) The defendant is a dangerous offender whose behavior 

indicates little or no regard for human life and no hesitation about 

committing a crime in which the risk to human life is high; (5) The 

defendant is convicted of two (2) or more statutory offenses involving 

sexual abuse of a minor with consideration of the aggravating 

circumstances arising from the relationship between the defendant and 

victim or victims, the time span of defendant‟s undetected sexual activity, 

the nature and scope of the sexual acts and the extent of the residual, 

physical and mental damage to the victim or victims; (6) The defendant is 
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sentenced for an offense committed while on probation; or (7) The 

defendant is sentenced for criminal contempt. 

T.C.A. § 40-35-115(b). An order of consecutive sentencing must be “justly deserved in 

relation to the seriousness of the offense.” T.C.A. § 40-35-102(1); see State v. Imfeld, 70 

S.W.3d 698, 708 (Tenn. 2002). In addition, the length of a consecutive sentence must be 

“no greater than that deserved for the offense committed.” T.C.A. § 40-35-103(2); 

Imfeld, 70 S.W.3d at 708. 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 imposing partially consecutive sentences, the trial court determined that 

Hawkins “is an offender whose record of criminal activity is extensive,” and referred to 

the convictions listed in the presentence report. The presentence report reflects that 

Hawkins‟ criminal record began in 1999 when he was eighteen years old and includes 

felony and misdemeanor convictions in both Tennessee and Kentucky. Although the 

majority of Hawkins‟ convictions were for misdemeanor offenses, this court has held that 

misdemeanor convictions alone can support the imposition of consecutive sentences. See

State v. Marquon Lanorris Green, No. W2012-0164-CCA-R3-CD, 2013 WL 2405217, at 

*7 (Tenn. Crim. App. May 30, 2013), perm. app. denied (Tenn. Oct. 25, 2013). As noted, 

the existence of only one factor is sufficient to impose consecutive sentencing. See

T.C.A. § 40-35-115(b); Pollard 423 S.W.3d at 862 (“Any one of these grounds is a 

sufficient basis for the imposition of consecutive sentences.”) (citing State v. Dickson, 

413 S.W.3d 735, 748 (Tenn. 2013)). The record fully supports the trial court‟s finding in 

this regard, and we discern no abuse of discretion by the trial court in imposing partially 

consecutive sentences. Hawkins is not entitled to relief. 

CONCLUSION

Pursuant to the foregoing authority and analysis, we affirm the judgments of the 

trial court. 

_________________________________ 

CAMILLE R. McMULLEN, JUDGE