IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 24, 2009 at Knoxville

LARRY DARNELL PINEX v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2005-C-2373 Mark J. Fishburn, Judge

No. M2009-00675-CCA-R3-CD - Filed March 5, 2010

The defendant, Larry Darnell Pinex, appeals from his Davidson County Criminal Court

convictions of assault, attempted vandalism, and attempted theft. He claims that the trial

court erred in not requiring the State to elect an offense to serve as the basis for the assault

charge, that the evidence was insufficient to support the convictions of assault and attempted

vandalism, and that the trial court erroneously sentenced him on all convictions. The

attempted vandalism conviction must be reversed, and that charge must be dismissed because

insufficient evidence underlies the conviction. The assault conviction is affirmed as are the

sentences for assault and attempted theft.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part,

Reversed in Part

JAMES CURWOOD WITT,JR., J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and D. KELLY THOMAS, JR., JJ., joined.

Dawn Deaner, District Public Defender, and Jeffrey A. DeVasher, Assistant Public Defender

(on appeal), and Katie Weiss and Emily Todoran, Assistant Public Defenders (at trial), for

the appellant, Larry Darnell Pinex.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney

General; Victor S. Johnson III, District Attorney General; and Robert Elliott McGuire,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The conviction offensesresulted from incidentsthat occurred at the EZ Market

on Lafayette Street in Nashville on June 3, 2005. The evidence introduced at trial consisted

of the testimony of Joe Crutcher, the photographs of the crime scene that were introduced
through his testimony, and the testimony and photographs of a Metro Nashville Police

Department crime scene officer.

Mr. Crutcher testified that in June 2005 he was employed by EZ Market as a

stockman and utility person and that, on June 3, the defendant came into the market, went to

the cooler, removed some bottled beer from the cooler, and placed the beer under his shirt.

When the defendant moved toward the door, another employee of the market confronted him

about the beer and retrieved it. The defendant cursed and left through the door, slamming

it so hard the door glass broke. A short time later, the defendant re-entered the store and

went back to the beer cooler and picked up some beer. When the store employees told him

to put the beer back, he cursed, threw a beer bottle toward the check-out counter, and threw

a second bottle in the direction of Mr. Crutcher. Then, as the defendant approached Mr.

Crutcher with another bottle of beer “drawn back,” Mr. Crutcher pulled a pistol and shot him.

Mr. Crutcher testified that he shot the defendant because he “thought [the

defendant] was going to hit [him] with that bottle.” He added that the defendant was a larger

man than was he.

Mr. Crutcher testified that he was paid in cash each night by EZ Market. He

further testified that he had brought the gun that he used to shoot the defendant to the store,

as was his custom. He had placed the gun on a shelf in the stock room, but after the

defendant came into the store the first time, Mr. Crutcher put the gun in his pocket.

The State closed its case, and the defendant called the crime scene officer who

introduced into evidence photographs in addition to those identified and introduced by Mr.

Crutcher.

The jury convicted the defendant of assault and attempted vandalism. The trial

court imposed sentences of 11 months, 29 days for the Class A misdemeanor of assault and

6 months for the Class B misdemeanor of attempted vandalism. Also, the court imposed a

sentence of 6 months for the Class B misdemeanor conviction of attempted theft, a charge

to which the defendant pleaded guilty prior to the jury verdicts on the other two charges. The

trial court ordered these sentences to be served concurrently, but it ordered this effective

sentence to be served consecutively to a sentence in another case.

On appeal, the defendant claims that the trial court erred in failing to require

the State to “elect the specific factual occurrence on which it sought a conviction for

aggravated assault,” that the evidence was insufficient to support the convictions of assault

and attempted vandalism, and that the trial court erred in sentencing the defendant.

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I. Election of Offenses

At the conclusion of the State’s proof, the defendant moved the trial court to

require the State to elect between two instances of assault alleged by victim Joe Crutcher.

The defendant identified the victim’s claim that the defendant threw a bottle at him as one

instance of assault and the claim that the defendant raised another bottle toward him as a

second instance. The trial court ruled that the defendant’s actions directed toward Mr.

Crutrcher in the EZ Market were a continuous course of assaultive conduct. The trial court

gave no specific instructions to the jury regarding the requirement of unanimity vis a vis the

two actions identified by the defendant. The defendant argues on appeal that the failure of

the State to elect between these two instances as the basis for the single charge of assault

violated his state constitutional right to a unanimous jury verdict.

A. Motion for New Trial

Before we address the merits of this issue, we must first determine whether the

issue is properly before us. The jury trial was held on September 16, 2008. Each judgment

reflects in handwriting “9/16/08” as the date of entry. A transcript of the sentencing hearing

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contained in the appellate record, however, indicates that the hearing was not held until

September 19, 2008. A motion for new trial was not filed until October 20, 2008.

A motion for new trial must be made in writing or reduced to writing within

thirty days of the “date the order of sentence is entered.” Tenn. R. Crim. P. 33(b). This

provision is mandatory, and the time for the filing cannot be extended. Tenn. R. Crim. P.

45(b); State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997). Furthermore, the appellate court

is precluded from considering any issue raised in an untimely motion for new trial for which

the remedy is a new trial. Tenn. R. App. P. 3(e). In the present case, the claim of an

untimely motion for new trial affects only the election issue, not the issue of sufficiency of

the evidence or the sentencing issues.

The thirtieth day from September 16, 2008, was Thursday, October 16, 2008,

but the thirtieth day from September 19, 2008, was Sunday, October 19, 2008, a circumstance

that, working from September 19, would have extended the 30-day period through October

20, the day on which the motion for new trial was filed. Thus, the motion was untimely if

the judgments were entered on September 16 but timely if they were entered on September

19 or thereafter.

The judgments contain no file dates stamped by the trial court clerk. This court ordered the trial

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court clerk to supplement the appellate record with copies of date-stamped judgments if any existed; the trial

court clerk duly filed an affidavit stating that no date-stamped judgments were filed in the trial court.

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We begin by pointing out that the State has not raised the issue of untimeliness

of the motion for new trial; indeed, the State’s brief says, “A motion for new trial was timely

filed on October 20, 2008.” Notwithstanding the State’s acknowledgment, we must

independently determine whether this court has jurisdiction to consider the election issue on

appeal. See, e.g., State v. Joseph Benjamin Comer IV, No. E2007-00544-CCA-R3-CD, slip

op. at 3 (Tenn. Crim. App., Knoxville, Apr. 21, 2008).

We emphasize that, in Tennessee criminal cases, the “judgment of conviction

shall include: (A) the plea; (B) the verdict or findings; and (C) the adjudication and

sentence.” Tenn. R. Crim. P. 32(e)(2) (emphasis added). Although an “order” containing

the plea, verdict, and adjudication may have been executed on September 16, the “judgment

of conviction” as prescribed by Rule 32(e) could not have been entered prior to September

19, 2008, because the sentence was not determined until then. In light of this recognition,

and in view of the State’s lack of contention on the issue, we deem the handwritten entry date

of the prescribed judgment of conviction to be clerical error and that the judgment was

effectively entered on September 19, 2009. As such, the motion for new trial was timely.

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That accomplished, we take up the election of offense issue.

B. Merits of the Issue

Under Tennessee law, if the evidence at trial suggests that the defendant has

committed more offenses than the number charged, the court has the obligation to require the

State to elect the offense(s) for which it seeks conviction. State v. Shelton, 851 S.W.2d 134,

137 (Tenn. 1993). The accused has a fundamental constitutional right to the election. See

id.; State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997). This court has said:

[I]n cases involving evidence which shows a real potential that

a conviction may occur as a result of different jurors concluding

that the defendant committed different acts, each of which

separately showing the commission of an offense, the trial court

must augment the general unanimity instruction to insure that

the jury understands its duty to agree unanimously to a particular

We surmise that portions of the judgment form, including the “date of entry,” may have been filled 2

out on September 16, following the trial, and that the sentencing terms were not filled in until September 19

or after. Adding to the distortion of the record is the absence of the trial court clerk’s date-of-filing stamp. 

We encourage trial courts not to embark upon “filling out” the uniformjudgmentformuntil after the sentence

has been determined, and we urge trial court clerks to date stamp the judgment when it is filed, as in the case

of all other filings in that court.

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set of facts. The assessment of this potential would involve

consideration of the allegations made and the statutory offense

charged, as well as the actual evidence presented.

State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991); see also State v. Forbes, 918

S.W.2d 431, 446 (Tenn. Crim. App. 1995).

We acknowledge that, if the defendant’s actions resulted in two assaults, the

trial court should have addressed the issue by requiring an election and/or by imparting an

enhanced unanimity instruction to the jury; however, we decline to dwell upon whether the

defendant’s assaultive actions in handling two beer bottles equated to one assault or two. We

hold that, in this case, any error in requiring an election was harmless beyond a reasonable

doubt.

Mr. Crutcher’stestimony described fluid actions by the defendant that occurred

in a short time-frame. His testimony suggested no distinction in credibility as between one

“action” and the other. Furthermore, the defendant has suggested “nothing to diminish the

quality of the state’s proof regarding one of the [actions] versus the other.” See State v.

Robert Derrick Johnson, No. M1998-00546-CCA-R3-CD, slip op. at 12 (Tenn. Crim. App.,

Nashville, Dec. 30, 1999), aff’d on separate grounds, 53 S.W.3d 628 (Tenn. 2001). “In such

a situation,” this court said in Robert Derrick Johnson, “the risk of the jury convicting the

defendant on a less than unanimous agreement as to the factual basis for the offense is

negligible, at best.” Id. As such, the jury in the present case had no basis for accrediting “the

state’s evidence in part and reject[ing] it in part.” See id. Finally, we note that the trial court

did administer the general instruction on the requirement of unanimity. All in all, we cannot

discern reversible error in the proceedings.

II. Sufficiency of the Evidence

The defendant challenges the sufficiency of the evidence underlying both jury

verdicts.

When an accused challenges the sufficiency of the evidence, an appellate

court’s standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443

U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.

1985). This rule applies to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Winters, 137

S.W.3d 641, 654 (Tenn. Crim. App. 2003).

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In determining the sufficiency of the evidence, the appellate court should not

reweigh or reevaluate the evidence, State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990), and questions concerning the credibility of the witnesses, the weight and value

of the evidence, as well as all factual issues raised by the evidence are resolved by the trier

of fact, not the appellate court, State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Also,

this court may not substitute its inferences for those drawn by the trier of fact from the

evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956); Farmer v. State,

574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this court must afford the

State of Tennessee the strongest legitimate view of the evidence contained in the record as

well as all reasonable and legitimate inferences which may be drawn from the evidence.

Cabbage, 571 S.W.2d at 835.

A. Assault

The defendant posits that the conviction of assault “cannot stand because the

physical evidence, which established that only one (1) beer bottle was found on the floor at

the front of the market, cannot be reconciled with Crutcher’s testimony that the defendant

threw two (2) bottles and left a third bottle on the floor at the back of the market.” The

defendant asks the court to apply the “physical facts rule” to overturn the assault conviction.

The “physical facts rule” has been explained as “the accepted proposition that

in cases where the testimony of a witness is entirely irreconcilable with the physical

evidence, the testimony can be disregarded.” State v. Hornsby, 858 S.W.2d 892, 894 (Tenn.

1993). The rule comes into play when “the testimony of a witness ‘cannot possibly be true,

is inherently unbelievable, or is opposed to natural laws,’ [so that] courts can declare the

testimony incredible as a matter of law and decline to consider it,” id. (quoting United States

v. Narciso, 446 F. Supp. 252, 282 (E.D. Mich. 1977)), and when “‘undisputed physical facts

are entirely inconsistent with and opposed to testimony,’” id. (quoting Wood v. United States,

342 F.2d 708, 713 (8th Cir. 1965)). A high threshold, however, must first be surmounted to

apply the rule. “We caution,” wrote the supreme court in Hornsby, “that the power to

disregard oral testimony because of its inherent lack of believability is one that should be

used sparingly.” Id. at 895. The court continued,

Only when the testimony is inherently improbable and

impossible of belief should courts intervene to declare it

incredible as a matter of law. When the testimony is capable of

different interpretations, the matter should be left for the jury to

decide as the sole arbiter of credibility. Deciding whether there

are inconsistencies in testimony, reconciling conflicts in

testimony, and how this might affect a witness’s credibility, are

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all within the province of the jury. As the court observed . . .

“the improbability of the truth of the testimony, which justifies

rejection under the physical facts rule, cannot rest upon any

theory involving the consideration of the comparative credibility

of the witnesses.”

Id. at 895-96 (citations omitted).

The recommended reluctance to apply the physical facts rule leads us

ultimately to reject it in this case. We must allow the jury to resolve the issue of how many

bottles the defendant handled or threw, and we are mindful that various possibilities exist to

explain the crime scene officer’s finding only one bottle lying about the EZ Market. The

officer’s testimony and his photographs do not render Mr. Crutcher’s testimony “inherently

improbable or impossible of belief,” given the inferences the jury was empowered to draw

from the evidence. Therefore, and because the evidence otherwise establishes the elements

of the assault, we affirm that conviction.

B. Attempted Vandalism

Citing the scienter requirement that causing damage to or the destruction of any

real or personal property must be knowing, see T.C.A. § 39-14-408(a), the defendant claims

that the evidence failed to establish that he knowingly attempted to damage the front door of

the EZ Market when he slammed the door during his initial exit of the store on June 3. The

defendant argues on appeal that the breaking of the door glass resulted from nothing more

than the defendant’s recklessness.

Although we do not adopt the defendant’s line of argument per se, we agree

with him that the evidence does not support the attempted vandalism verdict as a matter of

law. “[S]pecific intent to commit an offense” is a “traditional requirement” of the law of

attempt in Tennessee. T.C.A § 39-12-101, Sentencing Comm’n Cmts. The proof in the

present case does not establish beyond a reasonable doubt that the defendant acted with

specific intent to damage the market’s door. The defendant may have been “aware of but

consciously disregard[ed] a substantial and unjustifiable risk that . . . the result [would]

occur,” but such awareness and disregard constituting a “gross deviation from the standard

of care that an ordinary person would exercise under all the circumstances” would equate

only to recklessness. See T.C.A. § 39-11-302(c). Accordingly, we reverse the conviction of

attempted vandalism and order the dismissal of that count.

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III. Sentencing

The defendant claims that the maximum misdemeanor sentences imposed on

the three convictions were excessive and that the trial court’s alignment of the effective

sentence in this case to be served consecutively to a 35-year sentence in another case was

erroneous.

A. Sentence Length

The trial court enhanced the defendant’s sentences based upon his prior

criminal activity and the involvement of more than one victim. See T.C.A. § 40-35-

114(2),(4) (2003). Given an offense date such as that in this case, a trial court, had it been

engaged in felony sentencing, would have been constitutionally constrained from using any

factor to enhance a sentence except the defendant’s record of prior convictions, unless the

defendant otherwise admitted the factual bases for other enhancement factors. See generally

State v. Gomez, 239 S.W.3d 733 (Tenn. 2007).

When there is a challenge to the length of a sentence, it is the duty of this court

to conduct a de novo review of the record with a presumption that the determinations made

by the trial court are correct. T.C.A. § 40-35-401(d) (2003). This presumption is conditioned

upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). The burden of showing that the sentence is improper is upon the appellant.

Id. In the event the record fails to demonstrate the required consideration by the trial court,

review of the sentence is purely de novo. Id.

In misdemeanor sentencing, the sentencing court is afforded considerable

latitude. See, e.g., State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999). A

separate sentencing hearing is not mandatory in misdemeanor cases, but the court is required

to provide the defendant with a reasonable opportunity to be heard as to the length and

manner of the sentence. See T.C.A. § 40-35-302(a) (2003). Misdemeanor sentences must

be specific and in accordance with the principles, purpose, and goals of the Criminal

Sentencing Reform Act of 1989. State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The

misdemeanor offender must be sentenced to an authorized determinant sentence with a

percentage of that sentence designated for eligibility for rehabilitative programs. Generally,

a percentage of not greater than 75 percent of the sentence should be fixed for a misdemeanor

offender. Id. at 393-94. A convicted misdemeanant has no presumption of entitlement to a

minimum sentence. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997); State v.

Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). Although in felony sentencing the

trial court has an affirmative duty to state on the record, either orally or in writing, which

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enhancement and mitigating factors it found applicable and its findings of fact, see T.C.A.

§§ 40-35-209(c), -210(f) (2003), the misdemeanor sentencing statute, in contrast, only

requiresthat the trial court consider the enhancement and mitigating factors when calculating

the percentage of the sentence to be served “in actual confinement” prior to “consideration

for work release, furlough, trusty status and related rehabilitative programs,” id.§

40-35-302(d) (2003); State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998).

Although the present case arose prior to the legislature’s amendment of the

Tennessee felony sentencing law to comply with requirements of the Sixth Amendment to

the United States Constitution, that amendment’s constraints upon a judge’s fact-finding in

imposing a sentence do not apply to misdemeanors. State v. Jeffery D. Hostetter, No.

M2003-02839-CCA-R3-CD, slip op. at 10 (Tenn. Crim. App., Nashville, Dec. 29, 2004),

perm. app. denied (Tenn. 2005). Thus, the trial judge, who was instructed by statute merely

to consider the enhancement factors and who was laboring without the constraints of a

presumptive sentence, was free to consider applicable enhancement factors other than prior

criminal record and enjoyed wide latitude in fixing the misdemeanor sentences.

Although we agree that the record fails to support the application of the

enhancement factor that more than one victim was involved in any offense, the defendant’s

record of many prior convictions as shown by the presentence report justifies the trial court’s

imposition of maximum sentences for the misdemeanors at issue.

B. Consecutive Sentencing

The trial court aligned the present sentences concurrently, but it imposed the

effective sentence of 11 months, 29 days to be served consecutively to a prior Range III, 35-

year sentence. See State v. Larry Darnell Pinex, No. M2007-01211-CCA-R3-CD (Tenn.

Crim. App., Nashville, Nov. 6, 2008) (modifying defendant’s effective 37-year sentence for

convictions of attempted aggravated rape and attempted aggravated burglary to 35 years).

The trial court based the consecutive alignment upon the defendant’s extensive record of

criminal activity. See T.C.A. § 40-35-115(b)(2). The defendant argues that the 11-month,

29-day sentence stacked onto the 35-year sentence to be served at 45 percent exceeds that

“deserved for the offense committed” and is more than the “least severe measure necessary

to achieve the purposes for which the sentence is imposed” upon the 52-year-old defendant.

The trial court may order sentences to be served consecutively when it finds

by a preponderance of the evidence that “[t]he defendant is an offender whose record of

criminal activity is extensive.” T.C.A. § 40-35-115(b)(2). In addition to the convictions of

attempted aggravated rape and attempted aggravated burglary described in Larry Darnell

Pinex, the defendant had garnered prior convictions of disorderly conduct, driving on a

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suspended license, assault, theft, possession of drug paraphernalia, possession of a weapon,

aggravated assault, armed robbery, and attempted rape. The presentence report showed

multiple prior convictions of theft, aggravated assault, and armed robbery. In view of this

record, we hold that the imposition of consecutive sentencing in the present case was

warranted and was not excessively severe.

IV. Conclusion

Based upon the above analyses, we affirm the convictions of and sentences for

assault and attempted theft. We reverse the conviction of attempted vandalism and order the

dismissal of that charge.

 

JAMES CURWOOD WITT, JR., JUDGE

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