IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 18, 2012 Session

STATE OF TENNESSEE v. ROBERT NELSON BUFORD, III

Direct Appeal from the Criminal Court for Davidson County

No. 2008-B-1355 J. Randall Wyatt, Judge

No. M2011-00323-CCA-R3-CD - Filed January 31, 2013

A Davidson County Criminal Court Jury convicted the appellant, Robert Nelson Buford, III,

of facilitation of first degree felony murder and facilitation of attempted especially

aggravated robbery. After a sentencing hearing, the appellant received an effective thirtyfive-year sentence. On appeal, he contends that (1) the evidence is insufficient to support the

convictions; (2) the trial court should have suppressed his statement to police because he

invoked his right to remain silent; (3) his prior bad acts were inadmissible; (4) the trial court

should have given the jury a requested instruction; and (5) his effective sentence is excessive.

Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial

court erred by admitting the appellant’s statement into evidence because the appellant

invoked his right to remain silent but that the error was harmless. Therefore, we affirm the

judgments of the trial court.

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

Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the Court, in which ALAN E. GLENN and

ROGER A. PAGE, JJ., joined.

Patrick G. Frogge, Nashville, Tennessee, for the appellant, Robert Nelson Buford, III.

Robert E. Cooper,Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant

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

OPINION

I. Factual Background
In April 2008, the Davidson County Grand Jury indicted the then thirty-eight-year-old

appellant; his brother, Kevin L. Buford; his nephews, Kevin D. Buford and Deangelo

Monquez Buford, who were sixteen and seventeen years old, respectively; and Raymond

Javoss Pirtle, also seventeen years old, for the first degree felony murder and attempted

especially aggravated robbery of Billy Jack Shane Tuders. The appellant wastried separately

from his co-defendants.

1

At trial, Janice Tuders, the victim’s mother, testified that the victim was thirty-three

years old when he died. On January 21, 2008, the victim worked at the Texaco Xpress Lube

on Clarksville Pike. He got off work about 5:15 p.m., received seventy dollars in cash from

his employer for his day of work, and walked to the convenience store next door to buy a

pack of cigarettes and a lottery ticket. The victim carried a wallet with him sometimes, but

Ms. Tuders did not know if he had his wallet on January 21.

Officer Eric Richardson of the Metropolitan Nashville Police Department (MNPD)

testified that on January 21, 2008, he was dispatched to an area near the Texaco Xpress Lube

and arrived at 6:13 p.m. Other officers were present and tending to the victim. Officer

Richardson found a spent shell casing, which had been ejected from a semi-automatic

weapon, on the ground.

Detective Norris Tarkington of the MNPD testified that he arrived at the crime scene

thirty to forty minutes after the initial call. Standing on Clarksville Pike and looking at the

Texaco Xpress Lube, a car wash was to the right of the Xpress Lube, and the Bordeaux

Phillips 66 convenience store was to the right of the car wash. Hunter’s grocery store was

across the street from the three businesses. Detective Tarkington found a spent nine

millimeter shell casing in front of the car wash’s office and a twenty-dollar bill and a lottery

ticket close to the car wash’s office door. A blood trail led from the car wash to the back of

the Xpress Lube, where the victim was found, and a pool of blood and a knit cap were on the

ground near the victim. From the evidence, Detective Tarkington determined that the victim

was standing close to the office door of the car wash when he was shot. The victim ran

through one of the car wash bays and behind the Xpress Lube, where he collapsed in the

parking lot.

At the time of the appellant’s trial, Kevin L. Buford had been convicted of facilitation of first degree 1

felony murder and attempted especially aggravated robbery, and Kevin D. Buford had been convicted of first

degree felony murder and attempted especially aggravated robbery. See State v. Kevin L. Buford, Sr.,No.

M2010-01618-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 342, at *1 (Nashville, May 24, 2011); State v.

Kevin D. Buford, No. M2010-02160-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 958, at *1 (Nashville,

Dec. 28, 2011).

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On cross-examination, Detective Tarkington acknowledged that Clarksville Pike was

a busy street and said that the victim was shot about the time “rush hour” ended. The grocery

store across from the car wash had outside lights, but the lights were not bright. The Phillips

66 convenience store to the right of the car wash was known as a busy store and was well-lit.

Donna Jones testified that on January 21, 2008, she and her teenage son went to

Hunter’s grocery store on Clarksville Pike. As they were leaving, Jones heard gunshots

across the street. She looked at the car wash and saw three African-American men running

and laughing. The men ran from the car wash and got into the passenger side of a sportutility-type vehicle (SUV). Jones said that she did not see their faces but that “two were

probably younger men, but one was an older man.” When Jones and her son got into their

vehicle and pulled onto Clarskville Pike, the SUV was in front of them. Jones drove home

and telephoned the police. She and her son gave statements to the police, and her son may

have given the police a partial license plate number. The police showed her photograph

arrays, but she could not identify anyone.

On cross-examination,Jones acknowledged thatshe had testified in previoustrials and

hearings related to the victim’s death. She also acknowledged that she previously testified

that she could not remember if she saw two or three men. However, she stated, “I think it

was three.”

Detective Harold Haney of the MNPD testified that shortly after the shooting, he

learned about surveillance video showing the shooting. He obtained the video, and the State

played it for the jury. The video camera, mounted at the Phillips 66 convenience store and

turned toward the self-service car wash, shows some of the car wash bays. A person walks

through one of the bays, toward the surveillance camera, and out of view on the bottom left

of the screen. About one and one-half minutes later, two individuals walk through the

adjacent, lighted car wash bay. They walk toward the surveillance camera, in the direction

of the first person, and out of view on the bottom left side of the screen. Shortly thereafter,

a fourth person walks through the same lighted bay and out of view but on the bottom right

side of the screen. Less than one minute later, the victim appears on the bottom left of the

screen, walking away from the Phillips 66 convenience store and toward the car wash bays.

Someone approaches him from behind and hits him on the head. As the victim runs toward

the car wash bays, the shooter points the gun at him. A flash of light appears as the shooter

fires the gun at the victim. The victim runs through the lighted car wash bay and out of view

at the top of the screen. The shooter and another person, who are the same two individuals

seen walking together earlier in the video, run through the adjacent bay and out of view.

Jenness Schuhmann testified that in January 2008, she worked as a crime scene

technician for the MNPD. On January 21, 2008, she went to the scene of the shooting and

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collected a knit cap, a twenty-dollar bill, a Lotto ticket, and a nine millimeter shell casing.

She also took photographs of the scene.

Lieutenant Frank Ragains of the MNPD testified that he lifted fingerprints off the

suspects’ SUV. Lorita Marsh of the MNPD testified as an expert in latent print examination

that she examined the lifted prints and compared them to the five defendants’ fingerprints.

Marsh concluded that Kevin L. Buford’s fingerprints were on the Explorer’s driver-side and

passenger-side front doors. Raymond Pirtle’s fingerprints were on the driver-side and

passenger-side rear doors. The appellant’s fingerprints were on the passenger-side front and

rear doors. On cross-examination, Marsh testified that she could not determine the ages of

fingerprints.

Twenty-year-old Raymond Pirtle testified that he was friends with Kevin D. and

Deangelo Buford, the sons of Kevin L. Buford, and had gone to school with them since the

eighth grade. Pirtle said he carried a gun for protection. About two weeks before the crimes,

Kevin D. asked Pirtle for the gun, and Pirtle gave it to him. Pirtle said that about noon on

2

January 21, 2008, Kevin D. came to Pirtle’s home and asked if Pirtle “[wanted] to ride” with

him and “do a robbery.” Pirtle told him yes and got into a four-door Ford Explorer with him.

Kevin L. was driving the SUV, and Deangelo was sitting in the front passenger seat. Kevin

D. sat behind Kevin L., and Pirtle sat behind Deangelo. Kevin L. drove to the Burger King

on Gallatin Road and told the three juveniles about a car dealership they could rob. Deangelo

had Pirtle’s gun, and the three juveniles walked to the car lot. However, they were scared

and returned to the SUV. Kevin L. was disappointed that they had not committed the robbery

and tried to get them to return to the car lot, but they refused. Kevin L. drove to an Auto

Zone and went inside to see if surveillance cameras were in the store, but he returned to the

Explorer and drove away from the store without telling the juveniles anything.

Pirtle testified that Kevin L. claimed he did not have enough money to buy gasoline

and drive them home. Pirtle was friends with someone named “Little E,” so Kevin L. drove

to Little E’s house. Little E walked outside to the Explorer, and Pirtle bought some

marijuana from him. Kevin L., Kevin D., Deangelo, and Pirtle smoked the marijuana in the

Explorer. Then Kevin L. drove downtown and picked up the appellant. Pirtle had never met

or seen the appellant before that day, and the appellant sat in the backseat of the Explorer,

between Kevin D. and Pirtle. Kevin L. drove to a liquor store on Jefferson Street and told

everyone in the Explorer, “‘I’m fixin to go in here and I am fixin to buy some liquor and I

am going to tell y’all who is cashing their check and then when they come out that is when

y’all rob them.’” Kevin L. went into the liquor store, bought some vodka, and returned to

Because three of the defendants share a surname, we will refer to them as “Kevin L.,” “Kevin D.,” 2

and Deangelo for clarity.

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the Explorer. He told them to rob an African-American man, but they did not want to rob

the man because too many people were outside the store. Kevin L. came up with a plan for

the appellant to rob Little E. He drove to the Buena Vista Market and told the juveniles to

telephone Little E and have Little E meet them there. The appellant got Pirtle’s gun from

Deangelo, got out of the Explorer, and waited for Little E to arrive. When Little E arrived

at the market and approached the Explorer, the appellant pretended not to know anyone in

the Explorer, walked up to Little E, pointed the gun at him, and demanded money. Little E

threw his money onto the ground. Pirtle did not know whether the appellant picked up the

money. However, after the robbery, he saw the appellant run through a field. A short time

later, Kevin L. picked up the appellant. The appellant still had Pirtle’s gun.

Pirtle testified that Kevin L. told everyone in the Explorer, “‘Y’all got 15 minutes to

do a robbery, because I have got to pick up my wife from work.’” He pulled into one of the

bays at the Xpress car wash on Clarksville Pike and saw the victim, who had walked through

the car wash. Pirtle said that the victim was counting money and that Kevin L. told them,

“‘That is who y’all need to rob. He got some money right there.’” The appellant and Kevin

D. got out of the Explorer, and Kevin L. drove to the grocery store across the street from the

car wash. Pirtle got out of the Explorer and walked toward the car wash to help Kevin D.

and the appellant. The victim came out of the Phillips 66 convenience store. Pirtle said that

he saw Kevin D. hit the victim with the gun, that the victim turned around and hit Kevin D.,

and that Kevin D. shot the victim. Pirtle, Kevin D., and the appellant ran through the car

wash bays and got back into the Explorer. Their seating arrangement was the same as before

except that Pirtle was sitting in the middle of the backseat and the appellant was sitting

directly behind Deangelo.

Pirtle testified that Kevin L. drove his two sons home and that they kept Pirtle’s gun.

Then Kevin L. drove Pirtle home. The next morning, the police arrived at Pirtle’s house and

arrested him. The police searched the house for the gun but did not find it. Pirtle

acknowledged that he had testified in two previous trials related to this case, that he pled

guilty to facilitation of second degree murder, and that he received a fifteen-year sentence

to be served at thirty percent. He said that prior to the shooting on July 21, 2008, he had been

arrested as a juvenile for evading arrest, bringing a weapon onto school property with intent

to go armed, and disorderly conduct. He said that he was affiliated with the Gangster

Disciples but that he had never committed a crime for the gang.

On cross-examination, Pirtle acknowledged that although Kevin L. claimed he did not

have any money, Kevin L. bought vodka from the liquor store. Pirtle acknowledged that

Kevin L. drove to the liquor store because he thought Mexicans cashed their checks there.

Pirtle acknowledged testifying at Kevin L.’s trial that Kevin L. told them to rob a woman at

the liquor store, not an African-American man. Pirtle spoke with the police on January 22,

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2008, but did not tell them his complete story until January 2010, almost two years after the

shooting. He acknowledged that he lied to the police when he spoke with them on January

22 but said he did not remember telling them that he pulled the gun out of his pants at the car

wash and gave it to Kevin D. He also acknowledged that he talked to a court-appointed

mental health evaluator and that he lied to the evaluator. He said he did not remember telling

the evaluator that he blacked out and had no memory of the crimes. Pirtle acknowledged that

Kevin D. used Pirtle’s gun to shoot the victim. However, he said, “I had something to do

with [the shooting], but I didn’t get the chance to help because by the time I got over there

everything was already happening.” He acknowledged that Kevin D. and Deangelo also

were members of the Gangster Disciples.

The defense played Pirtle’s January 22, 2008, video-recorded interview for the jury.

During the interview, Pirtle told the officers the following: The four Bufords picked him up

about 2:00 p.m. on January 21, 2008, and they rode around for hours. They stopped at the

grocery store across the street from the car wash on Clarksville Pike. Kevin D. and a “lightskinned dude” saw the victim, got out of the Explorer, and walked to the car wash. Pirtle

also got out of the Explorer and walked across the street to the car wash. The victim walked

through one of the car wash bays and went into the Phillips 66 convenience store. The

appellant and Kevin D. waited in a “dark spot” outside. When the victim came out of the

store, Kevin D. and the light-skinned man “got him.” Kevin D. hit the victim on the head

with the gun, wrestled with the victim, and shot him. Pirtle did not hear Kevin D. tell the

victim, “Give me your wallet.” Pirtle said that he was “right there with them” and that Kevin

L. was waiting in the Explorer, which was still in the grocery store parking lot across the

street. After the shooting, Pirtle, Kevin D., and the light-skinned man ran across the street

to the Explorer. Pirtle did not know the light-skinned man’s name and had never seen him

before. Initially, Pirtle claimed that Kevin D. and Deangelo owned the gun. However, he

later admitted that the gun was his and that he bought it “off the streets.” He said that the

gun was a “nine” and that he thought it was a Smith and Wesson. He explained that about

three weeks before the shooting, he gave the gun to Kevin D. When Kevin D. and Deangelo

picked him up on the afternoon of January 21, 2008, they returned the gun to him. However,

before the shooting, Pirtle pulled the gun out of his pants and gave it back to them so they

could “go hit the lick.” He said that Kevin L. knew they were going to rob the victim but that

Kevin L. did not know Kevin D. was going to shoot the victim. Pirtle told the officers that

“we was all in it together” but that Kevin D. “took it too far.” After the shooting, everyone

was “talking bad” to Kevin D. for his having shot the victim. At the conclusion of the

interview, the police officers told Pirtle that they had talked with Kevin D., that Kevin D.

admitted shooting the victim, and that Kevin D. claimed he gave the gun to Pirtle after the

shooting. Pirtle denied knowing the location of the gun. He said that Kevin D. and Deangelo

had the gun when Kevin L. dropped them off at home.

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On redirect examination, Pirtle acknowledged that much of what he told the officers

during the January 22 interview was consistent with his testimony at the appellant’s trial and

with testimony he gave at previous trials. He said the light-skinned man was the appellant.

Sergeant Chris Steele of the MNPD testified that on January 21, 2008, he arrived at

the crime scene about twenty minutes after the initial call. Shortly after his arrival, he

learned about a video of the shooting and obtained it from a nearby business. He also spoke

with Donna Jones, who described the suspect vehicle and gave him a license tag number.

About thirty minutes later, officers located the vehicle, which was owned by Kevin L. and

his wife, at a residence. Officers began watching the residence. When two vehicles left the

home, officers followed them to the McDonald’s on Gallatin Road. Kevin L., who was in

one of the vehicles, agreed to go with the police to the police department. Sergeant Steele

interviewed Kevin L. He also interviewed Kevin D., Deangelo, and Raymond Pirtle.

Sergeant Steele interviewed Pirtle again on January 29, 2009, and showed Pirtle a photograph

array. Pirtle selected the appellant’s photograph and identified him as the light-skinned man

present at the time of the shooting. The grand jury indicted the appellant, the police arrested

him, and Sergeant Steele interviewed him on February 2, 2009.

The State played the appellant’s video-recorded interview for the jury. During the

interview, the appellant said he did not understand why he was being charged with murder

when he did not shoot the victim. He claimed that his brother, nephews, and Raymond Pirtle

picked him up from “the mission” on January 21 and that they rode around in the Explorer.

The appellant wanted Kevin L. to drop him off at the Phillips 66 convenience store. Kevin

D. told everyone in the Explorer that he needed some money and that he was going to rob

someone, but the appellant and Kevin L. told him not to commit a robbery. Kevin L. parked

across the street from the car wash on Clarkville Pike, and the appellant and Kevin D. walked

through the car wash bays to the Phillips 66 convenience store. Pirtle was behind them. The

victim came out of the convenience store as the appellant was about to go inside. The victim

walked by the appellant, the appellant heard a gunshot, and Kevin D. and Pirtle ran across

the street to the Explorer. The appellant also ran to the Explorer because he was scared and

“didn’t want to get left.” After the incident, Kevin L. dropped off the appellant at “the

mission.” The appellant said that he did not encourage Kevin D. to rob the victim, that he

did not know Kevin D. was going to rob the victim, and that he tried to stop Kevin D. when

he saw what was happening.

On cross-examination, Sergeant Steele acknowledged that he showed “photographic

line-ups” containing the appellant’s photograph to Donna Jones and her son. Ms. Jones did

not identify anyone, but her son identified Kevin D. and Raymond Pirtle. Sergeant Steele

showed the Joneses arrays containing the appellant’s photograph, but they did not identify

him. Sergeant Steele said he used “trickery” during the appellant’s interview in order to get

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the appellant to talk with him. On redirect examination, Sergeant Steele acknowledged that

both of the Joneses said they saw three people run away from the shooting.

Dr. Sandra Thomas, an assistant medical examiner for Davidson County, testified as

an expert in forensic pathology that she did not perform the victim’s autopsy but that she

reviewed his autopsy report and concurred with its results. His cause of death was a gunshot

wound to the torso, and his manner of death was homicide. The bullet entered the victim’s

back on the left side; struck his heart, spleen, and a couple of other muscular structures; and

exited his left chest. The bullet traveled back to front, left to right, and slightly downward.

The victim would have lived for a few minutes after receiving the wound. The victim had

two twenty-dollar bills, a tube of Chapstick, a pack of cigarettes, two lighters, and a

pocketknife on his person. On cross-examination, Dr. Thomastestified that the victim would

have been able to run after the shooting.

The jury convicted the appellant of facilitation of first degree felony murder, a Class

A felony, as a lesser-included offense of first degree felony murder and facilitation of

attempted especially aggravated robbery, a Class C felony, as a lesser-included offense of

especially aggravated robbery. After a sentencing hearing, the appellant received an

effective thirty-five-year sentence.

II. Analysis

A. Sufficiency of the Evidence

The appellant contends that the evidence is insufficient to support the convictions

because the evidence merely places him at the crime scene and because Raymond Pirtle’s

testimony was not sufficiently corroborated. The State argues that the evidence is sufficient.

We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the standard

for review by an appellate 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). The State is entitled to the strongest legitimate view of the

evidence and all reasonable or legitimate inferences which may be drawn therefrom. State

v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of

witnesses and the weight and value to be afforded the evidence, as well as all factual issues

raised by the evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659

(Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor will this court

substitute its inferences drawn from the circumstantial evidence for those inferences drawn

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by the jury. Id. Because a jury conviction removes the presumption of innocence with which

a defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted

defendant has the burden of demonstrating to this court that the evidence is insufficient.

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A guilty verdict can be based upon direct evidence, circumstantial evidence, or a

combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140

(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and ‘[t]he

inferences to be drawn from such evidence, and the extent to which the circumstances are

consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’”

State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting State v. Marable, 313 S.W.2d 451,

457 (Tenn. 1958)). “The standard of review ‘is the same whether the conviction is based

upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.

2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

The appellant was convicted of facilitation of first degree felony murder and

facilitation of attempted especially aggravated robbery. As charged in this case, first degree

felony murder is the “killing of another committed in the perpetration of or attempt to

perpetrate any . . . robbery.” Tenn. Code Ann. § 39-13-202(a)(2). “Especially aggravated

robbery is robbery . . . (1) [a]ccomplished with a deadly weapon; and (2) [w]here the victim

suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403(a). “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. § 39-13-403(a). “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(a). Tennessee Code Annotated section 39-11-402(2) provides, “A person

is criminally responsible for an offense committed by the conduct of another, if . . . [a]cting

with 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.”

Taken in the light most favorable to the State, the evidence shows that the appellant

used the murder weapon to rob Little E. After the robbery, Kevin L. stopped at the Xpress

car wash on Clarkville Pike, saw the victim walking and counting money, and told everyone

in the Explorer, “‘That is who y’all need to rob.” The appellant and Kevin D. got out of the

Explorer and followed the appellant to the Phillips 66 convenience store. Kevin L. drove to

the grocery store across the street from the car wash, and Pirtle got out of the Explorer and

walked toward the car wash to help Kevin D. and the appellant. When the victim came out

of the store, Kevin D. hit him on the head and shot him. Then Kevin D., the appellant, and

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Pirtle ran back to the Explorer. While no direct evidence establishes the appellant’s guilt in

this case, the jury could infer from the evidence that he knew Kevin D. was going to rob the

victim and that he provided substantial assistance by accompanying Kevin D. to the Phillips

66 convenience store and waiting with Kevin D. for the victim to exit the store. Thus, the

evidence is sufficient to support the convictions.

Turning to the appellant’s claim that Pirtle’s testimony was not sufficiently

corroborated, the appellant is correct in that “a conviction may not be based solely upon the

uncorroborated testimony of an accomplice.” State v. Stout, 46 S.W.3d 689, 696 (Tenn.

2001), superseded by statute on other grounds as stated in State v. Odom, 137 S.W.3d 572,

580-81 (Tenn. 2004). As our supreme court has explained,

There must be some fact testified to, entirely independent of the

accomplice’s testimony, which, taken by itself, leads to the

inference, not only that a crime has been committed, but also

that the defendant is implicated in it; and this independent

corroborative testimony must also include some fact establishing

the defendant’s identity. This corroborative evidence may be

direct or entirely circumstantial, and it need not be adequate, in

and of itself, to support a conviction; it is sufficient to meet the

requirements of the rule if it fairly and legitimately tends to

connect the defendant with the commission of the crime

charged. It is not necessary that the corroboration extend to

every part of the accomplice’s evidence. The corroboration

need not be conclusive, but it is sufficient if this evidence, of

itself, tends to connect the defendant with the commission of the

offense, although the evidence is slight and entitled, when

standing alone, to but little consideration.

State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994) (quoting State v. Gaylor, 862 S.W.2d

546, 552 (Tenn. Crim. App. 1992)) (brackets omitted), superseded by statute on other

grounds as stated in Odom, 137 S.W.3d at 580-81. But, “[w]hether sufficient corroboration

exists is a determination for the jury.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001).

In the present case, Donna Jones testified that she heard a gunshot, looked across the

street, and saw three men run to the Explorer. She also testified that two of the men were

young but that one was “older,” that they were laughing, and that she saw them get into the

passenger side of the Explorer. The appellant’s fingerprints were found on the Explorer’s

passenger-side front and rear doors. In our view, Ms. Jones’ testimony and the fingerprint

evidence connected the appellant to the crimes and established his identity. Therefore,

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Pirtle’s testimony was sufficiently corroborated.

B. Right to Remain Silent

The appellant contends that the trial court erred by denying his motion to suppress his

statement to police on February 2, 2009, because Sergeant Steele questioned him after he

invoked his right to remain silent. The State contends that the trial court properly denied the

motion. We conclude that the trial court erred by denying the appellant’s motion to suppress

but that the error was harmless.

Before trial, the appellant filed a motion to suppress his statement, arguing that

Sergeant Steele continued to question him after he refused to waive his Miranda rights. At

a pretrial hearing on the motion, defense counsel argued that when Sergeant Steele asked the

appellant if he wanted to waive his right to remain silent, the appellant answered, “Nah.”

Counsel also argued that the appellant’s answer, coupled with his body language, made it

clear that he was saying no. However, Sergeant Steele continued to question the appellant

“as if that never happened.” The State argued that “the tape will speak for itself.”

The defense played the relevant portion of the appellant’s video-recorded interview

for the trial court. The video shows the appellant sitting at a table across from Sergeant

Steele and another officer. The appellant is facing toward the video camera, which is

mounted above him and the police officers, and the officers have their backs to the camera.

Sergeant Steele, reading from a waiver of rights form, asks the appellant, “You have the right

to remain silent. Do you understand that right?” The appellant nods his head, and the second

officer in the interview room says, “Yes, sir.” Sergeant Steele makes a mark on the form,

continues reading from the form by asking the appellant if he wants to waive that right and

answer questions, and looks up at the appellant. The appellant answers something to the

effect of “na-ah.” Sergeant Steele looks down, makes another mark on the form, and informs

the appellant as follows:

So before we ask, so before we continue the additional rights

you must understand anything you say can be used against you

in court. You got a right to a lawyer for advice before we ask

you questions and have that lawyer with you during questioning.

If you can’t afford a lawyer one will be provided to you free of

charge before we ask any questions. So, I’ve read the statement

of my rights or had the rights read to me and understand what

my rights are. And when I make a statement or answer

questions I do not want a lawyer at this time. I understand and

know what I am doing. No promises or threats have been made

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to me. No pressure or coercion of any kind has been used

against me. I also understand that anytime I choose to stop

answering questions the interview will cease. Understand that?

The appellant nods his head up and down and signs the waiver of rights form.

Sergeant Steele testified for the State at the hearing and acknowledged that he had

informed suspects of their rights many times. During the appellant’s interview, Sergeant

Steele marked on the waiver of rights form that the appellant wanted to waive his right to

remain silent and answer questions. The State asked him, “Now, you just saw the video are

you willing to sit here and say that you believe that he said, ‘Nah’, Detective?” Sergeant

Steele said that he would not have continued questioning the appellant “if we had any

indication that he would have said, no, he didn’t want to speak to us.” The trial court then

asked the officer, “[W]hat did it sound like to you that he said, what did you think that he

said[?]” Sergeant Steele answered, “It has been almost three years and in watching that, I

mean, it is hard to hear and I am sure because even in my - in my supplement I put that he

agreed to speak with us during the interview.”

On cross-examination, Sergeant Steele testified that he always filled out the waiver

of rights form for a suspect. He acknowledged that he filled out the appellant’s form and that

he “pushed” it across the table for the appellant to sign. He also acknowledged that the

appellant did not read the form before the appellant signed it.

The trial court noted that the video-recording was “not as clear as it could be” and that

it wanted to view the recording again. On the morning of trial, the court ruled as follows:

The other day we had a hearing in here having to do with

[Sergeant] Steele’s interview of the defendant and even though

I think it would be a little more clear considering that interview

and everything about it, the Court is of the opinion that when the

defendant was first asked about his rights and so forth there was

some little response that wasn’t really an unequivocal sort of

statement as much as it was a na, uh, na-na, uh-huh, unh-uh,

whatever word like that.

[T]he detectives were [reading] from a pretty straightforward

waiver form that spelled out all of his rights. The right to

remain silent, the right to save his views in court and this and

this and that and the defendant was kind of nodding his head in

agreement as if he understood his right to remain silent and then

-12-
[Sergeant] Steele asked him with that right in mind do you wish

to waive that right and answer questions which the defendant

made some kind of a sound like I just said a nuh, na, na-na-na,

and . . . I can see how you could say that sounded like a no.

[Sergeant] Steele testified that it was not a no [and] that

he would have ceased questioning at that time if he thought it

was and under the totality of the circumstances the Court is of

the opinion that that was not a clear refusal or denial of the

defendant understanding his rights, nor was it a clear denial or

whatever rejection of him talking to the detective about it and I

think under the circumstances all of them the Court finds that he

did waive his rights.

There was a statement read to the defendant right before

he signed it. I read the statement of my rights, the rights have

been read to me and this and this and this and indicated that no

promises or threats have been made and I understand that I can

stop talking at anytime and he was asked, the defendant was, if

he understood that paragraph and he nodded yes in agreement.

He nodded yes in agreement I might say and then he signed the

waiver of rights form.

In reviewing a trial court’s determinations regarding a suppression hearing,

“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of

fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact

in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.

Nevertheless, appellate courts will review the trial court’s application of law to the facts

purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

Both the Fifth Amendment to the United States Constitution and article I, section 9

of the Tennessee Constitution provide protection against compulsory self-incrimination. To

this end, “‘once warnings have been given, . . . if the individual indicates in any manner, at

any time prior to or during questioning, that he wishes to remain silent, the interrogation must

cease. At that point, he has shown that he intends to exercise his Fifth Amendment

privilege.’” State v. Crump, 834 S.W.2d 265, 269 (Tenn. 1992) (quoting Miranda v.

Arizona, 384 U.S. 436, 473-74 (1966)).

We have carefully reviewed the video recording of the interview. Clearly, the

-13-
appellant did not say the word “no.” However, he also did not say “yes.” Instead, he said,

“Na ah.” He also appeared to shake his head, albeit slightly, to the side. Sergeant Steele was

looking directly at the appellant. Without hesitation, Sergeant Steele marked on the form that

the appellant wanted to waive his right to remain silent and began reading the next paragraph

on the form to the appellant. The appellant never indicated that Sergeant Steele had

misunderstood him and signed the waiver of rights form. Sergeant Steele testified at the

hearing that the appellant did not give any indication that he wanted to remain silent, and the

trial court obviously found the officer credible on that point. However, this court has stated

that whether a suspect has invoked his right to counsel is an objective, not subjective,

standard. State v. Koffman, 207 S.W.3d 309, 318 (Tenn. Crim. App. 2006). We see no

reason why the standard for the right to remain silent would be any different. Based upon

our review of the video recording, we conclude that the appellant invoked his right to remain

silent. Therefore, the trial court should have granted his motion to suppress his statement.

Next, we must determine whether the trial court’s error was harmless. In conducting

harmless error analysis, our supreme court has identified three categories of errors: (1)

structural constitutional error; (2) non-structural constitutional error; and (3)

non-constitutional error. State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008); State v.

Powers, 101 S.W.3d 383, 397 (Tenn. 2003); State v. Garrison, 40 S.W.3d 426, 433-34 (Tenn.

2000); State v. Harris, 989 S.W.2d 307, 314-15 (Tenn. 1999).

Structural constitutional errors involve “defects in the trial mechanism” that

“compromise the integrity of the judicial process itself.” Rodriguez, 254 S.W.3d at 371.

Structural constitutional errors “have an impact upon ‘[t]he entire conduct of trial from

beginning to end’” and require automatic reversal. Momon v. State, 18 S.W.3d 152, 165

(Tenn. 1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 311 (1991)). The denial of the

right to counsel, denial of the right to self-representation at trial, denial of the right to a jury

trial, and racial discrimination in grand jury selection are examples of structural

constitutional errors. Rodriguez, 254 S.W.3d at 371; Momon, 18 S.W.3d at 165-66.

Constitutional errors that are not structural do not require automatic reversal.

“However, the burden on the State to demonstrate that a non-structural constitutional error

is harmless remains quite stringent. The existence of a non-structural constitutional error

requires reversal unless the State demonstrates beyond a reasonable doubt that the error is

harmless.” Rodriguez, 254 S.W.3d at 371. The test to be applied is “‘whether it appears

“beyond a reasonable doubt that the error complained of did not contribute to the verdict

obtained.”’” Id. (quoting State v. Allen, 69 S.W.3d 181, 190 (Tenn. 2002) (quoting Neder

v. United States, 527 U.S. 1, 15 (1999))). For non-constitutional errors, a defendant

challenging a conviction has the burden of demonstrating that the error “more probably than

not affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App.

-14-
P. 36(b); Rodriguez, 254 S.W.3d at 371-72. Appellate courts consider the entire record in

evaluating whether the error affected the outcome of the trial. Rodriguez, 254 S.W.3d at

371-72.

The trial court’s admitting the appellant’s statement, taken in violation of his right to

remain silent, did not impact the trial from beginning to end and is a non-structural

constitutional error. Therefore, the State has the burden of proving beyond a reasonable

doubt that the error did not contribute to the appellant’s conviction. In our view, the State

has met its burden. Pirtle testified that the appellant robbed Little E at the Buena Vista

Market. Kevin L. wanted everyone to commit another robbery, drove to the Xpress car wash,

and saw the victim counting money. Kevin L. told everyone in the Explorer that the victim

was the person they needed to rob. Pirtle said that the appellant and Kevin D. got out of the

Explorer, walked through the car wash bay, and walked to the Phillips 66 convenience store.

When the victim came out of the store, Kevin D. shot him and everyone ran back to the

Explorer. As stated previously, Ms. Jones’ testimony and the fingerprint evidence

sufficiently corroborated Pirtle’s testimony. The jury obviously considered the evidence

carefully, concluding that the appellant did not have the intent required to convict him as

charged but that he provided “substantial assistance” to Kevin D. Given the evidence, we

conclude that the trial court’s error was harmless.

C. Prior Bad Acts

Next, the appellant contends that the trial court erred by allowing Raymond Pirtle to

testify about the appellant’s prior bad acts pursuant to Rule 404(b), Tennessee Rules of

Evidence. In addition, he contends that the trial court did not follow the procedural mandates

of the Rule by failing to address whether Pirtle’s testimony was relevant or clear and

convincing and by failing to address whether the probative value of the testimony was

outweighed by the danger of unfair prejudice. The State argues that Pirtle’s testimony was

admissible. We agree with the State.

Before trial, the State filed a motion to introduce evidence of bad acts the appellant

committed on January 21, 2008, prior to his committing the crimes in this case. Before

opening statements, the trial court held a jury-out hearing to determine the admissibility of

the evidence.

During the hearing, Pirtle’s testimony was essentially the same as his trial testimony.

Specifically, he testified that on the afternoon of January 21, 2008, he rode around with

Kevin D., Deangelo, and Kevin L. and that they planned to “hit a lick,” meaning commit a

robbery. Initially, they planned to rob a car lot across the street from Burger King. However,

Kevin D., Deangelo, and Pirtle did not want to rob the lot, so Kevin L. drove to the Auto

-15-
Zone in order to check the business for surveillance cameras. After leaving Auto Zone, the

group bought marijuana from Little E, smoked it, and picked up the appellant at his place of

employment downtown. Kevin L. drove to a liquor store, where Mexicans were known to

cash their checks, and went inside. When he came out, he told Kevin D., Deangelo, Pirtle,

and the appellant about a person they could rob. Pirtle, Kevin D., and Deangelo were

supposed to commit the robbery, but they refused. Deangelo telephoned Little E and offered

to buy more marijuana, and Kevin L. drove to the Buena Vista Market in Pirtle’s

neighborhood so they could meet Little E. When the Explorer arrived at the market, the

appellant got out of the SUV and pretended to use a pay telephone. When Little E arrived

and walked to the Explorer, the appellant showed a gun and robbed him. Kevin L. drove

away from the market but picked up the appellant later on another street. Kevin L.

announced that they had fifteen minutes to commit a robbery because he had to pick up his

wife from work. He stopped at the car wash on Clarksville Pike, and the appellant and Kevin

D. got out of the Explorer. Kevin L. drove across the street, and Pirtle got out and walked

to the car wash.

On cross-examination, Pirtle testified that he thought they picked up the appellant

from the appellant’s place of employment because the appellant was wearing a “button-up”

shirt and a coat. He had not seen the appellant prior to January 21, 2008, and did not talk to

the appellant. Pirtle said Kevin L. made the appellant rob Little E at the Buena Vista Market.

Pirtle acknowledged that he, Kevin D., and Deangelo were members of the Gangster

Disciples and that he had previous charges for possessing a weapon at school and evading

arrest. He also acknowledged that he had been in numerous fights at school and said that he

had been suspended from school possibly thirty times.

At the conclusion of Pirtle’s testimony, defense counsel noted that the trial court had

already ruled in previous 404(b) hearings for the appellant’s co-defendants that Pirtle’s

testimony was admissible. Nevertheless, defense counsel argued that Pirtle’s story was

“ridiculous” and that “[t]his robbery of the weed dealer in [particular] is one of the more

outlandish things that I have ever heard.” The State argued, “He testified at a previous

404(b) hearing. He has testified at some of their trials . . . all about the same items and he

has been consistent all the way through. He has never been inconsistent about what

happened and we would just ask to be permitted to use the testimony.” The trial court ruled

as follows:

Here is the way that I hear him today having to do with this man

over here Mr. Robert Nelson Buford. His testimony has been

mostly consistent with regard to the people coming, the man

coming Little E or Little Edward or whatever his name was to

that phone booth and all of that business about the marijuana.

-16-
Mr. Robert Buford was there then and he is testifying that he

had the pistol and that he robbed him and it was attempting to

be, looking like it was, like he was independent of the other

people in the car and then they later saw him through and he

came over and met him even though they were all involved

together.

I am going to allow him to testify with regard to that

incident and let the jury give it whatever weight they think it

deserves and I will instruct the jury like I did the other time

about this his leading up to the incident that we are here about

now.

At first, the trial court ruled that Pirtle could testify only about the robbery of Little

E because any bad acts that occurred before the group picked up the appellant were

irrelevant. However, the State argued that the earlier bad acts were relevant because “the

whole point is that the robberies actually are unsuccessful until [the appellant] gets on the

scene and again those items that before he gets in are not 404(b).” The State argued, “It is

part of the State’s proof . . . the whole thing was that they were going out to rob people and

the testimony was and it will be from Mr. Pritle that that was made plain to [the appellant].”

The trial court replied, “He didn’t make it plain in here then.” Nevertheless, the trial court

was persuaded by the State’s argument and ruled that Pirtle could testify about events that

occurred before the appellant became involved. Later during the trial, defense counsel

informed the trial court that he forgot to argue on the record during the 404(b) hearing that

Pirtle’s prior bad act testimony was “highly prejudicial and not probative.” The trial court

stated, “I will note for the record that you have argued that.” The trial court also stated, “I

would have made the same decision after that.”

Tennessee Rule of Evidence 404(b) provides,

Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in

conformity with the character trait. It may, however, be

admissible for other purposes. The conditions which must be

satisfied before allowing such evidence are:

(1) The court upon request must hold a hearing outside

the jury’s presence;

(2) The court must determine that a material issue exists

-17-
other than conduct conforming with a character trait and must

upon request state on the record the material issue, the ruling,

and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong,

or act to be clear and convincing; and

(4) The court must exclude the evidence if its probative

value is outweighed by the danger of unfair prejudice.

See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005); State v. Parton, 694 S.W.2d

299, 302 (Tenn. 1985). A trial court’s decision regarding the admission of Rule 404(b)

evidence will be reviewed under an abuse of discretion standard; however, “the decision of

the trial court should be afforded no deference unless there has been substantial compliance

with the procedural requirements of the Rule.” State v. DuBose, 953 S.W.2d 649, 652 (Tenn.

1997).

Generally, “[o]nly in an exceptional case will another crime, wrong, or bad act be

relevant to an issue other than the accused’s character. Such exceptional cases include

identity, intent, motive, opportunity, or rebuttal of mistake or accident.” State v. Luellen, 867

S.W.2d 736, 740 (Tenn. Crim. App. 1992). In making its decision regarding the admissibility

of the testimony, the trial court must first determine if the offered testimony is relevant to

prove something other than the appellant’s character. “The jury may consider evidence

admitted under 404(b) as substantive evidence at trial.” State v. Kiser, 284 S.W.3d 227, 288

(Tenn. 2009).

Turning to the instant case, the State’s theory was that the appellant was criminally

responsible for the victim’s death because he knew Kevin D. was going to rob the victim and

participated in the attempted robbery. Meanwhile, the appellant’s defense was that he was

merely present and did not know Kevin D. was going to rob the victim. However, the fact

that the appellant used the murder weapon to rob Little E shortly before the attempted

robbery of the victim was highly relevant to the appellant’s intent in this case.

The appellant also claims that the trial court failed to find that proof of the Little E

robbery was clear and convincing. In support of his argument, the appellant notes that the

trial court said, “He didn’t make it plain in here then.” We disagree with the appellant. The

trial court noted that Pirtle had testified previously and that Pirtle’s prior testimony was

consistent with his testimony in the jury-out hearing. Therefore, we can infer that the court

found Pritle’s testimony about the robbery of Little E to be clear and convincing. In our

view, the trial court’s stating that Pirtle “didn’t make it plain in here” was not a reference to

-18-
the veracity of Pirtle’s testimony about the robbery of Little E but was the trial court’s way

of saying that Pirtle’s testimony may not establish that the appellant knew Kevin D. was

going to rob the victim.

The appellant also contends that the trial court failed to address the probative value

of Pirtle’s testimony about the robbery of Little E. Again, we disagree. Defense counsel

specifically raised the issue later in the trial, and the trial court stated that its ruling would

have been the same. Thus, the trial court found that the probative value of the testimony was

not outweighed by the danger of unfair prejudice. We agree with the trial court. Although

Pirtle’s testimony about the robbery of Little E was highly prejudicial, given that Pirtle’s

testimony was highly relevant to the appellant’s intent in this case, we cannot say that the

probative value of the evidence was outweighed by the danger of unfair prejudice.

To the extent that the appellant is arguing that Pirtle’s testimony about prior bad acts

committed by Kevin L., Kevin D., Deangelo, and Pirtle before the appellant became involved

were inadmissible, we agree that the testimony did not violate Rule 404(b), Tennessee Rule

of Evidence, because the prior bad acts were not the appellant’s prior bad acts. Moreover,

like the trial court, we find it relevant that the juveniles repeatedly considered committing a

robbery but did not actually do so until the appellant arrived. Such evidence supported the

theory that the appellant knew and encouraged the robbery of the victim. The testimony was

prejudicial. However, we cannot say that the probative value of the testimony was

substantially outweighed by the danger of unfair prejudice. See Tenn. R. Evid. 403.

Therefore, we conclude that the trial court did not err by ruling that Pirtle’s testimony was

admissible.

D. Jury Instructions

The appellant contends that the trial court erred by refusing to give a requested jury

instruction relating to accessory after the fact. He contends that the requested instruction was

necessary because his defense was that, “if he shared any culpability, it was that of accessory

after the fact, rather than as a principal.” The State contends that the trial court properly

refused to give the instruction. We agree with the State.

The appellant requested that the trial court give the following special instruction

during the jury charge: “Being an accessory after the fact to a crime committed does not

make one criminally responsible for that crime. Accessory after the fact is a separate crime

and it has not been charged in this indictment.” The trial court refused to give the

instruction, concluding that accessory after the fact did not relate to this case.

A defendant has a “constitutional right to a correct and complete charge of the law.”

-19-
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly, trial courts “should give a

requested instruction if it is supported by the evidence, embodies a party’s theory, and is a

correct statement of the law.” State v. Phipps, 883 S.W.2d 138, 150 n.20 (Tenn. Crim. App.

1994). A charge resulting in prejudicial error is one that fails to fairly submit the legal issues

to the jury or misleads the jury about the applicable law. State v. Hodges, 944 S.W.2d 346,

352 (Tenn. 1997). Tenn. Code Ann. § 39-11-411(a) provides that

A person is an accessory after the fact who, after the

commission of a felony, with knowledge or reasonable ground

to believe that the offender has committed the felony, and with

the intent to hinder the arrest, trial, conviction or punishment of

the offender:

(1) Harbors or conceals the offender;

(2) Provides or aids in providing the offender with any

means of avoiding arrest, trial, conviction or punishment; or

(3) Warns the offender of impending apprehension or

discovery.

Turning to the instant case, the appellant was not charged with being an accessory

after the fact, and the proof would not have supported a conviction for that offense.

Although the appellant claims that the trial court should have given the requested instruction

because his theory of the case was that if he shared any culpability, it was that of accessory

after the fact, he did not claim at any time before or during the trial that he harbored,

concealed, provided aid, or warned the offenders after the offenses in this case, and defense

counsel did not make that argument during closing arguments. Therefore, the trial court

properly refused to give the requested instruction.

E. Sentencing

Finally, the appellant contendsthat his effective sentence is excessive because the trial

court sentenced him to the maximum punishments in the range and ordered consecutive

sentencing. The State argues that the trial court properly sentenced the appellant. We agree

with the State.

At the sentencing hearing, Janice Tuders, the victim’s mother, testified that “if it had

not been for [the appellant] my son may not be dead right now.” She said that the defendants

“could have flipped hamburgers for a job” and that they “didn’t have to get out and do what

-20-
they are doing.” She said that she had raised eight children and that “they have never done

anything like this.” She said that the appellant was wrong but that she would leave his

sentences up to the trial court.

The appellant made a statement on his own behalf, saying that he wanted to apologize

to Ms. Tuders and the victim’s family for their loss of the victim. He said that he was sorry

for “the senseless act of my codefendant” and that “I also stand for those from my family

who did not stand and have no apology at all.”

The State introduced the appellant’s presentence report into evidence. According to

the report, then forty-one-year-old appellant had two-year-old triplets with his girlfriend of

seven years and a ten-year-old daughter from a previous relationship. The report shows that

the appellant obtained his GED and a certificate for commercial cleaning while in prison.

In the report, the appellant described his physical and mental health as “good” but said he

suffered intermittent knee pain from having been accidentally shot in the knee by a friend in

1991. The appellant reported that he began using alcohol when he was sixteen years old, that

he did not consume alcohol to the point of intoxication, and that he was not intoxicated when

the crimes in this case were committed. On his attorney’s advice, the appellant would not

answer questions pertaining to his drug use for the report. The report shows that the

appellant worked for Manpower from January 2004 to May 2005 and for Crutcher

Foundation from January 2007 to February 2008. The report also shows that the appellant

has been committing crimes since he was eighteen years old and has been convicted of

possession of cocaine with intent to sell, possession of a controlled substance for resale,

breach of the peace, conspiracy to conceal stolen property, concealing stolen property,

driving without a license, resisting arrest, reckless endangerment, criminal impersonation,

misdemeanor possession of anhydrous ammonia, misdemeanor theft, and vandalism. He has

nine prior convictions for criminal trespass, three convictions for possession of drug

paraphernalia, two convictions for carrying a weapon, and two convictions for public

intoxication. The appellant also has had a sentence involving probation revoked.

The trial court applied enhancement factor (1), that “[t]he defendant has a previous

history of criminal convictions or criminal behavior, in addition to those necessary to

establish the appropriate range,” and factor (2), that the “defendant was a leader in the

commission of an offense involving two (2) or more criminal actors.” Tenn. Code Ann. §

40-35-114(1), (2). However, the trial court stated that factor (1) was the “main”

enhancement factor. The trial court found no mitigating factors applicable. For the

facilitation of first degree murder conviction, a Class A felony, the trial court sentenced him

as a Range I, standard offender to twenty-five years. See Tenn. Code Ann. §

40-35-112(a)(1). For the facilitation of especially aggravated robbery conviction, a Class C

felony, the trial court sentenced him as a Range II, multiple offender to ten years. See Tenn.

-21-
Code Ann. § 40-35-112(b)(3). The trial court ordered that the appellant serve the sentences

consecutively based upon his extensive record of criminal activity. See Tenn. Code Ann. §

40-35-115(b)(2).

Previously, appellate review of the length, range, or manner of service of a sentence

was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).

However, our supreme court recently announced that “sentences imposed by the trial court

within the appropriate statutory range are to be reviewed under an abuse of discretion

standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn.

2012). In conducting its review, the trial court considers the following factors: (1) the

evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;

(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature

and characteristics of the criminal conduct involved; (5) evidence and information offered

by the parties on enhancement and mitigating factors; (6) any statistical information provided

by the administrative office of the courts as to sentencing practices for similar offenses in

Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for

rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State

v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to demonstrate

the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n

Cmts.

In determining a specific sentence within a range of punishment, the trial courtshould

consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of

punishment is the sentence that should be imposed, because the

general assembly set the minimum length of sentence for each

felony class to reflect the relative seriousness of each criminal

offense in the felony classifications; and

(2) The sentence length within the range should be

adjusted, as appropriate, by the presence or absence of

mitigating and enhancement factors set out in §§ 40-35-113 and

40-35-114.

Tenn. Code Ann. § 40-35-210(c).

The statutory enhancement factors are advisory only. See Tenn. Code Ann. §

40-35-114; State v. Carter, 254 S.W.3d 335, 343-44 (Tenn. 2008). We note that “a trial

court’s weighing of various mitigating and enhancement factors [is] left to the trial court’s

-22-
sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select

any sentence within the applicable range so long as the length of the sentence is ‘consistent

with the purposes and principles of [the Sentencing Act].’” Id. at 343.

[A]ppellate courts are therefore left with a narrower set of

circumstances in which they might find that a trial court has

abused its discretion in setting the length of a defendant’s

sentence . . . [and are] bound by a trial court’s decision as to the

length of the sentence imposed so long as it is imposed in a

manner consistent with the purposes and principles set out in

sections -102 and -103 of the Sentencing Act.

Id. at 345-46.

The appellant contends that the trial court erred by applying enhancement factor (1)

regarding his previous history of criminal convictions or behavior because the court also used

his prior convictions to order consecutive sentencing. However, we agree with the trial court

that the appellant’s criminal history is sufficient to enhance the length of his sentences and

that it is “extensive” as required for the imposition of consecutive sentencing. The appellant

also claims that this court is “forced to guess” what weight the trial court placed on

enhancement factor (1). However, the trial court stated that factor (1) was the “main” factor

and enhanced the appellant’s sentences to the maximum in the ranges, demonstrating that the

court gave great weight to that factor. Finally, the appellant contends that the trial court

failed to state whether it thought the appellant, his brother, or both were the leaders in the

commission of the offenses. However, the trial court found both of them to be leaders,

stating, “I would think his brother moreso, but [the appellant] just right near him, were the

leaders of this if anyone was.” See State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App.

1993) (observing that more than one criminal can be a leader in the commission of the

offense). We conclude that the trial court properly sentenced the appellant.

III. Conclusion

Based upon the oral arguments, the record, and the parties’ briefs, we affirm the

judgments of the trial court.

_________________________________

NORMA McGEE OGLE, JUDGE

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