IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 22, 2015

STATE OF TENNESSEE v. RODERICK DEWAYNE CROSBY

Appeal from the Criminal Court for Davidson County

No. 2011B1911 Mark J. Fishburn, Judge

No. M2014-00914-CCA-R3-CD – Filed July 13, 2015

The defendant, Roderick Dewayne Crosby, was convicted of four counts of aggravated 

kidnapping, Class B felonies, three counts of aggravated robbery, Class B felonies, one 

count of burglary, a Class C felony, one count of aggravated assault, a Class C felony, 

and one count of possession of a firearm with the intent to go armed during the 

commission of a dangerous felony, a Class D felony. The trial court imposed an effective 

sentence of thirty-four years. On appeal, the defendant contends that the evidence is 

insufficient to support his convictions for aggravated kidnapping; the trial court erred in 

denying his motion to suppress a photographic lineup identification; and that the trial 

court erroneously applied an enhancement factor and erred by imposing consecutive 

sentencing. After reviewing the briefs, the record, and the applicable law, we affirm the 

judgments of the trial court but remand the case for resentencing for the firearm offense 

and for the entry of a corrected judgment. 

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

Case Remanded

JOHN EVERETT WILLIAMS, J. delivered the opinion of the Court, in which ALAN E.

GLENN and ROGER A. PAGE, JJ. joined.

Joshua L. Brand (on appeal), and Mark Kovach (at trial), Nashville, Tennessee, for the

Appellant, Roderick Dewayne Crosby.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Assistant Attorney 

General; Victor S. Johnson, III, District Attorney General; and Sarah Davis and Robert 

McGuire, Assistant District Attorneys General, for the Appellee, State of Tennessee.
2

OPINION

FACTS AND PROCEDURAL HISTORY

This case arose after the defendant and two others invaded the victims‟ home. 

T.B.1testified that at the time of the incident, she was living with her grandmother, B.M., 

her mother, P.M., and her younger brother, J.C. B.M. slept on a couch in the living room, 

J.C. had his own bedroom, and T.B. and P.M. shared a bedroom (“T.B.‟s room”). On the 

evening of the incident, after the rest of the family had gone to sleep, T.B. was awake in 

her bedroom when she heard several loud kicking noises at the door. She started 

screaming at her mother that someone was kicking the door, and the two rushed into the 

living room.

T.B. and P.M. saw three men in the living room. All three men were wearing dark 

“hoodies,” had bandanas covering their faces, and were holding guns, which the victims 

testified were visible for the entirety of the incident. T.B. testified that the victims‟ cell 

phones were all on a dresser and that the men took the cell phones as soon as they entered 

the residence. The first man was later identified as Kirk Pointer, the second man was 

identified as the defendant, and the third man was identified as “Pop.”2 T.B. described 

the defendant as an African-American male who was “kind of short” with “shoulder 

length” dreadlocks. She believed that the defendant‟s hood was down because she was 

able to see his dreadlocks. She testified that the defendant had his sleeves rolled up, and 

she saw that he had a sizeable tattoo of the letter “C” on his left arm. He wore a bandana 

tied around his mouth and nose, but the bandana slid off of his nose several times, 

allowing T.B. to partially see his nose. T.B. recognized him as a person whom she had 

previously seen at a store in North Nashville, but she did not know him by name. P.M. 

described the defendant as an African-American male who had dreadlocks that fell just 

beyond his shoulders. She also testified that his sleeves were rolled up and that he had a 

“very visible” tattoo of the letter “C” on his left arm. P.M. saw that the defendant had 

other tattoos, but she did not attempt to identify them because the “C” was the most 

distinguishable tattoo. T.B. and P.M. both identified a photograph of a tattoo of a “C” as 

the tattoo that they saw on the defendant. 

T.B. believed that the men were intending to rob her sister‟s boyfriend, whom they 

mistakenly believed lived at the residence. She testified that the defendant, after seeing a 

picture of her sister‟s boyfriend, informed Mr. Pointer and Pop that they were “in the 

right house,” although J.C. testified that it may have been Pop who identified the 

 

1

In order to protect the privacy of the victims, we will refer to them by their initials. 

2

From the testimony at trial, it is unclear whether the third man‟s name was “Pop” or “Pac.” The 

majority of the witnesses referred to “Pop,” and we will do the same throughout the opinion.
3

boyfriend. The men asked if anyone else was in the house, and P.M. informed them that 

J.C. was there. 

J.C. testified that he was in his bedroom asleep when he heard shouting in the 

living room. He went to investigate the commotion and saw T.B., P.M., and B.M. in the 

living room with three armed men. J.C. attempted to return to his bedroom, and the 

defendant followed him into the room. J.C. described the defendant as an AfricanAmerican male who was 5‟8” or 5‟9” tall with dreadlocks “past his shoulders.” At one 

point, the defendant grabbed J.C.‟s arm and ordered him to go into T.B.‟s bedroom. J.C. 

was able to look at the defendant‟s arm, and he saw a large, green letter “C” tattooed on 

the defendant‟s left arm. He saw that the defendant had other tattoos, but he could not 

identify them. He testified that the defendant wore a blue bandana tied around his face 

that fell down several times, allowing J.C. to see the defendant‟s face from the top of his 

lip to his eyes at times during the incident. J.C. testified that he was attempting to pay 

close attention to the defendant‟s face “[t]o see if I could see who he was or could I 

remember who he was.” 

The men took all of the victims into T.B.‟s bedroom and ordered T.B., P.M., and 

J.C. to lie on their stomachs on the bed and to place their hands behind their backs. Mr. 

Pointer then put duct tape on their hands, ankles, and mouths. B.M. was in the bedroom, 

but the men did not duct tape her. As Mr. Pointer was binding the victims, the defendant 

and Pop started to ask the victims where the money was, with the defendant stating, 

“[W]here is the money; ya‟ll know where the money is.” T.B. testified that while the 

defendant was demanding the money, Pop “was just standing around just watching 

everything” and that he appeared to be using a phone or a walkie-talkie to narrate the 

unfolding events to someone outside of the residence. All of the victims testified that the 

defendant was in close proximity to them while they were in the bedroom and that he was 

holding his gun.

Shortly after duct taping the victims, the men began ransacking the house. T.B. 

testified that the men were “going through everything, pulling everything out.” P.M. 

testified that the defendant was “[u]sing a lot of profanity, asking us where the money 

[was] and mostly he was just tearing up the house.” The defendant found P.M.‟s purse, 

and she saw him empty the contents onto the floor. P.M. testified that $400 and a cell 

phone were taken from her. Each of the victims testified the defendant was primarily 

responsible for the search of the house. 

While the defendant was scouring the residence, Mr. Pointer took P.M. into J.C.‟s 

bedroom. He removed the tape from her mouth and started to kiss her. He pulled off her 

pajamas and kissed her breasts. He then took down his pants and demanded that P.M. 

perform oral sex on him. When she was finished, Mr. Pointer told her that “he was going 
4

to do [her] daughter the same way” if P.M. did not tell him where the money was. Mr. 

Pointer returned P.M. to T.B.‟s room and took T.B. to J.C.‟s room. When P.M. returned 

to the room, Pop was the only man in the room. 

In J.C.‟s bedroom, Mr. Pointer began to sexually assault T.B. During the assault, 

the defendant opened the bedroom door, and Mr. Pointer stopped his assault and

pretended as though he was simply talking to T.B. The defendant immediately closed the 

bedroom door, and Mr. Pointer resumed his sexual assault. The defendant later opened 

the bedroom door a second time and caught Mr. Pointer in the midst of his assault. The 

defendant entered the bedroom and said to Mr. Pointer, “[W]hat are you doing, come on 

out of there” and exited the bedroom. Mr. Pointer then returned with T.B. to her 

bedroom. 

Once the three men and the victims were back in T.B.‟s room, T.B. heard the men 

telling a fourth party that they could not find anything and asking if they should leave the 

residence. J.C. heard the men say “„that the house was clean,‟” and he observed them 

ripping the telephones out of the wall. Pop was speaking with an individual on a walkietalkie, and this person told the men to exit the residence. J.C. testified that before the 

men left, they instructed the victims not to leave until the men were gone. The men made 

off with J.C.‟s cell phone and several dollars off of his dresser, P.M.‟s cell phone and 

$400 from her purse, and a cell phone belonging to T.B. 

After the men left, the victims began to assist each other in removing the duct 

tape. T.B., whose hands had been freed when Mr. Pointer took her into J.C.‟s bedroom, 

called the police. Several officers, including Detective Edmond Strickling, arrived at the 

scene. Detective Strickling testified that in 2009, he was working for the Metro Nashville 

Police Department in the sex crimes unit. He arrived at B.M.‟s residence and interviewed 

P.M., T.B., and J.C. He interviewed the three separately, and each provided the same 

general description of the defendant as a African-American male who wore a black 

“hoodie”, had dreadlocks “[p]ossibly down to his shoulders,” and a tattoo of the letter 

“C” on his forearm. After the interview, P.M. and T.B. went to the hospital for a medical 

examination. Detective Strickling took DNA swabs from P.M. to the Tennessee Bureau 

of Investigation (“TBI”) to put in the CODIS system for testing. However, he was not 

able to develop any other leads in the case, and the case “kind of went cold.” 

Nearly a year and a half after the robbery, on February 14, 2011, T.B. saw the 

defendant when both were being booked into jail. The defendant had already been 

booked, and T.B. was beginning the booking process. When T.B. saw the defendant, she 

immediately recognized him as one of the men who broke into her house. His tattoos 

were not visible, but she was able to recognize him based solely upon his facial features. 

When the defendant saw her, he “did a double take,” and he approached T.B. to speak 
5

with her. He asked T.B. to make a phone call for him, and T.B. told him that she could 

not use the phone. The defendant continued to try to speak to her, and eventually a guard 

locked the defendant in a separate cell. 

T.B. estimated that she was with the defendant for an hour in jail. When she left, 

the defendant handed her a slip of paper with “a lot” of names and telephone numbers. 

He asked her to call the numbers to help him get out of jail “before his probation 

violation c[a]me up in the system.” T.B. told her mother that she saw the defendant in 

jail, but she did not contact Detective Strickling because she did not know how to reach 

him. 

In April of 2011, Detective Strickling learned that there had been a CODIS match 

from the DNA swab of P.M. that identified Mr. Pointer. Detective Strickling 

subsequently contacted P.M. and T.B. and met with them to show them a photograph 

lineup that included Mr. Pointer. Each victim viewed the lineup separately. Before 

showing them the lineup, Detective Strickling explained “that the suspect may or may not 

be in this form, in these photos, don‟t assume that the guilty party is in the photos, the 

photo lineup is used in a way to also free up and prove someone‟s innocence as long as –

as well as guilt.” T.B. corroborated these cautionary instructions, testifying that 

Detective Strickland told her prior to showing her the lineup that “it‟s a page of people, 

they may or may not have committed this crime, it may just be that they‟re eliminating 

someone off of here.” Both T.B. and P.M. identified Mr. Pointer from the lineup. 

After viewing the lineup, T.B. informed Detective Strickling that she may have 

seen the suspect with a “C” tattooed on his arm while she was in jail. T.B. had attempted 

to locate a “Face It” magazine, which contained the mug shots of people who had been 

arrested, to find the defendant‟s mug shot, but she was unable to do so. She was unable 

to provide Detective Strickling with the piece of paper containing the names and numbers 

that the defendant had given her because she had lost it. However, the defendant had 

given T.B. his phone number, and Detective Strickling testified that T.B. was able to 

provide him with that phone number. Detective Strickling retrieved the records for all of 

the African-American males arrested on the same day as T.B. By cross-referencing the 

phone number provided by T.B. with the arrest records of February 14, 2011, Detective 

Strickling was able to discover that the defendant gave that phone number when he was 

booked. Detective Strickling looked through the historical photos of the defendant and 

saw that he had a tattoo of the letter “C” on his forearm. He agreed that the photograph 

of the defendant matched the description given to him by the victims. 

After finding the photograph of the defendant, Detective Strickling interviewed 

Mr. Pointer about the crime. He showed Mr. Pointer a lineup that contained the 

defendant‟s photograph, and Mr. Pointer picked the defendant‟s photograph out of the 
6

lineup. Mr. Pointer voluntarily provided information about the defendant, using the 

defendant‟s first name. He described the defendant as a black male with dreadlocks, and 

he told Detective Strickling where the defendant lived and the type of vehicle that he 

drove. 

After speaking with Mr. Pointer, Detective Strickling compiled a photographic

lineup that contained the defendant‟s picture. He testified that he did not tell the victims 

that the man T.B. had seen in booking was in the lineup or that any of the persons in the 

lineup had a tattoo of the letter “C.” He stated that he read the victims the “advisory for

reviewing a photograph form” and explained to the victims that “the guilty party may or 

may not be in here, and the purpose of the photo lineup is to free up the innocent as well 

as [implicate] the guilty.” T.B. and J.C. confirmed that Detective Strickling gave them 

cautionary instructions before showing them the lineup. T.B., J.C., and P.M. each viewed 

the lineup separately. T.B., J.C., and Detective Strickling all testified that Detective 

Strickling did not direct their attention to a particular photograph. T.B. picked out the 

defendant‟s photograph almost immediately after seeing the lineup, and she told 

Detective Strickland that she was “[o]ne hundred percent sure” of her identification. J.C. 

also selected the defendant‟s photograph, and he believed that he was “75 to 80 percent” 

confident in his identification. 

Kirk Pointer testified that he pled guilty to aggravated rape, aggravated sexual 

battery, two counts of aggravated robbery, and aggravated burglary stemming from the 

incident at the victims‟ home. He stated that he was friends with the defendant and Pop 

and had known them for about six months prior to the incident. The men met at Mr. 

Pointer‟s aunt‟s house to discuss the crime. He knew the defendant as “Rod” and the 

third man as “Pop.” Mr. Pointer recalled that the defendant had dreadlocks and tattoos on 

his arms. When asked whose idea it was to commit the robbery, Mr. Pointer testified, “I 

think it was -- I think it was they idea.” He believed that the house was selected because 

it contained drugs. He did not have any knowledge that drugs were in the house, and he 

received this information from the defendant and Pop. He agreed that the District 

Attorney did not threaten him or coerce him into pleading guilty and that he did not 

receive any promises in exchange for his guilty plea. He agreed that the District Attorney 

did not ask him to testify at trial in exchange for a plea deal. 

On cross-examination, Mr. Pointer testified that he had “a lot” of prior felonies. 

He agreed that he was facing a potential sentence of life without parole as a result of the 

“three strikes rule.” He agreed that he was initially charged with fourteen crimes and that 

nine were dismissed after he pled guilty to five. He testified that the defendant may have 

had a “C” tattooed on his arm but that he could not recall what was on the defendant‟s 

other arm. He testified that he did not attempt to help detectives find Pop because he did 

not know where to find him. 
7

Mr. Pointer‟s attorney testified that he had thorough discussions with the District 

Attorney about a plea bargain for Mr. Pointer. He agreed that the discussions did not 

involve the possibility of Mr. Pointer testifying against any of his co-defendants in the 

case. 

Ellard Miller testified that he was the records technician at the Davidson County 

Sheriff‟s Office. He authenticated documents that showed that the defendant and T.B. 

would have been in the booking area at the same time. 

Dr. Jeffrey Neuschatz testified as an expert in the field of eyewitness 

identification. He testified that a lengthy retention interval between an event and a later 

viewing of a lineup could be harmful in making an accurate eyewitness identification and

could potentially lead to a mistaken identification. He testified that it was possible that 

T.B. could have mistakenly incorporated her encounter with the defendant in jail into her 

memory of the robbery. He stated that as a result, T.B. could have been mistaken in her 

later identification of the defendant. 

Dr. Neuschatz testified that a high-stress situation decreases a person‟s ability to 

make an accurate identification. He discussed “weapon focus,” which is a theory that if a 

weapon is present, a person is more likely to be looking at the weapon instead of focusing 

on the other aspects of the event. He testified that weapon focus “inhibits people‟s ability 

to make accurate identifications.” 

Dr. Neuschatz explained that confidence in an identification did not always 

correlate to accuracy in the identification. He testified that confidence was affected by a 

variety of factors that were unrelated to the accuracy of an identification or the memory 

of a particular event. He also testified that covering a person‟s hairline impaired the 

accuracy of an eyewitness identification. He agreed that if a person‟s face were covered 

with a bandana, it could affect another person‟s ability to accurately remember the event 

and make an identification. He testified that it was more difficult to identify a person 

whose face was covered than a person whose face was fully visible. 

Dr. Neuschatz testified that several guidelines for conducting an unbiased lineup 

were followed in this case but that several were not followed, particularly the lack of a 

“double blind” lineup. He testified that the lineup was not a double blind lineup because 

Detective Strickling knew the identity of the suspect. He explained that the guidelines 

for unbiased lineups were promulgated by the Department of Justice, but he agreed that 

the Department of Justice had not recommended a double blind lineup when the lineup 

guidelines were published in 1999. He agreed that the combined effect of a high-stress 
8

situation, the presence of weapons, and the covering of faces could have led to a mistaken 

identification in this case.

At the conclusion of the proof, the jury found the defendant guilty of all charges. 

At the sentencing hearing, the State agreed that the defendant was a Range I 

offender. The State gave a victim impact statement on behalf of the victims. The 

statement said that both P.M. and T.B. were still suffering as a result of the defendant‟s 

crimes. Both P.M. and T.B. were receiving counseling as a result of the robbery, and the 

victims wished for the court to impose the maximum sentence possible.

The defendant took the stand to read a letter “explaining that [he was] sorry about 

what happened.” He stated that he was sorry for “the situation” that the victims 

experienced on the evening of the incident. He apologized for forcing the victims to relive the incident by testifying at trial. The defendant claimed that he was “just . . . 

stressed trying to get back to [his] family.” He stated that he “made a mistake” and 

wished that he “could make a change for his mistake.” When asked why he wanted to 

apologize, the defendant responded, “Wrong place at the wrong time.” He testified that 

he was asking the trial court to “have mercy” on him and to give him “a chance to get 

back to his family.” 

The trial court allowed the State to cross-examine the defendant. When asked if 

he admitted that he committed the crime, the defendant said, “No, I didn‟t commit a 

crime.” He stated that he did not commit the crimes for which he was convicted and that 

he did not know Mr. Pointer or Pop prior to the incident. He testified that he wanted to 

apologize because “[i]f I‟m being accused of a crime, at least I want to apologize for 

what‟s going on.” He agreed that he wished to apologize for the fact that he was accused 

of a crime but maintained that he did not commit the crime. He admitted that he was on 

probation for several felony convictions in Georgia the night that the incident occurred. 

The trial court stated that it considered the evidence presented at trial and at the 

sentencing hearing, the presentence report, the sentencing principles embodied in 

Tennessee Code Annotated section 40-35-103, the arguments made as to the length of the 

sentence that should be imposed, the nature and characteristics of the criminal conduct 

involved, the evidence and information offered on enhancing and mitigating factors, the 

testimony of the defendant on his own behalf at the sentencing hearing, the defendant‟s 

potential for rehabilitation or treatment, as well as the general purposes for which the 

Sentencing Reform Act was enacted. 

The trial court found that the defendant was a violent Range I offender for the 

aggravated kidnapping convictions and a standard Range I offender for the remaining 

convictions. The court found that enhancement factor one, the defendant‟s prior criminal 

history, applied because the defendant had prior felony convictions from Georgia, 
9

numerous misdemeanor convictions from Davidson County, and several crimes that he 

committed before he was arrested on the instant charges. The court found that

enhancement factor two, that the defendant was the leader in the commission of an 

offense, applied to the robberies because Mr. Pointer appeared to be focused on sexually 

assaulting the victims while the defendant “took the lead role” in robbing the victims. 

The court applied enhancement factor eight, that the defendant failed to comply with 

conditions of a sentence involving release into the community, because the defendant was 

on probation for his felony convictions in Georgia when he committed the instant crimes. 

The court found that enhancement factor nine, the employment of a firearm during the 

commission of a dangerous offense, applied to the aggravated burglary. For the 

aggravated burglary, the court also found that the defendant had no hesitation about 

committing a crime where the risk to human life was high, as the defendant broke into the 

home, saw B.M. in the living room, and proceeded to commit the other offenses instead 

of leaving the premises. The court also found that enhancement factor thirteen, that the 

defendant was on probation at the time of the offenses, applied because he was on 

probation from Georgia. The court found that no mitigating factors were applicable. 

The trial court found that the offenses committed by the defendant were severe 

offenses and that he possessed a criminal history “evincing a clear disregard for the laws 

and morals of society.” The court noted that the defendant “routinely became a fixture 

within the criminal justice system,” once he became an adult. The court found that past 

efforts at rehabilitation for the defendant had failed, reiterating that the defendant was on 

probation when he committed the instant offenses. The court found that confinement was 

the least severe measure necessary to achieve the purpose for which the sentence was 

imposed. The court found that confinement was necessary to avoid depreciating the 

seriousness of the offenses and to protect society, noting that “home invasions [were] 

extremely serious.” The court found that confinement was also necessary to protect 

society by incarcerating a defendant with a lengthy history of criminal conduct and a 

propensity to continue to engage in criminal activities. The court observed that the 

majority of the defendant‟s convictions were for non-violent crimes but that his criminal 

conduct was continually ongoing The court found that less restrictive measures of 

punishment had previously been applied to the defendant without success. 

The trial court sentenced the defendant to six years for the aggravated burglary 

conviction, four years

3

for the possession of a firearm with the intent to go armed during 

the commission of a dangerous felony conviction, twelve years for each of the aggravated 

kidnapping convictions, twelve years for the aggravated robbery convictions, and six 

 

3 At the sentencing hearing, the trial court stated that it was imposing a six-year sentence for the 

possession of a weapon during the commission of a dangerous felony. However, the judgment reflects 

that the court imposed a four-year sentence with a mandatory minimum length of three years. See T.C.A. 

§ 39-17-1324(g)(1) (2010). 
10

years for the aggravated assault conviction. The trial court ordered the firearm sentence 

to be served consecutively to the sentence for aggravated burglary. The court ordered the 

kidnapping sentences to be served concurrently with each other but consecutively to the 

firearm sentence. The court ordered the aggravated robbery sentences and aggravated 

assault sentences to be served concurrently with each other but consecutively to the 

kidnapping sentences. The effective length of the sentence was thirty-four years.4 

The court found that there was a substantial basis to justify consecutive sentencing 

because the defendant had a record of criminal activity and because he was a dangerous 

offender whose behavior indicated little or no regard for human life and who had no 

hesitation about committing a crime when the risk to human life was high. The court 

found that the circumstances surrounding the offenses were aggravated. The court found 

that even if the defendant was not a direct participant in the sexual assaults, he knew that 

they were occurring and did nothing to stop them. The court found that an extensive 

period of confinement was necessary to protect society from the defendant‟s 

unwillingness to lead a productive life and that he resorted to criminal activity to further 

his anti-societal lifestyle. The court found that the aggregate length of the sentence was 

reasonably related to the offenses for which the defendant was convicted. 

The defendant filed an untimely motion for new trial. The certificate of service on 

the motion stated that the motion was filed on December 14, 2012, which would have 

been within the thirty-day time period required by Tennessee Rule of Criminal Procedure 

33(b). However, the motion was not actually filed until January 22, 2013. On February 

21, 2013, the petitioner filed a “Motion to Dismiss Trial Counsel on the Grounds of 

Ineffective Assistance of Counsel and Conflict of Interest.” New counsel was 

subsequently appointed and filed an amended motion for new trial on September 11, 

2013. The trial court held a hearing, after which it denied the motion. It appears that 

neither the court, the State, nor the defendant was aware that the initial motion for new 

trial was untimely filed. New counsel filed a notice of appeal and discovered during the 

briefing process that the initial motion was untimely. Counsel filed a motion to 

voluntarily withdraw the appeal, which this court granted. Counsel subsequently filed a 

petition for post-conviction relief seeking a delayed appeal on the grounds that trial 

counsel was ineffective for failing to timely file the motion for new trial. The trial court 

granted the motion and granted the defendant a delayed motion for new trial and direct

appeal. New counsel timely filed a delayed motion for new trial, and the trial court 

denied the motion. The defendant has appealed this denial, and we proceed to consider 

his claims. 

 

4 At the sentencing hearing, the trial court stated that the aggregate length of the sentence was 

thirty-six years. 
11

ANALYSIS

I. Sufficiency of the Evidence

The defendant argues that the evidence is insufficient to sustain his convictions for 

aggravated kidnapping. He contends that the confinement that constituted the aggravated 

kidnapping was incidental to the actions that constituted the rape and robbery of the 

victims. 

When a defendant challenges the sufficiency of the evidence, the relevant question 

for this court is “whether, after viewing the evidence in the light most favorable to the 

State, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal, 

“„the State is entitled to the strongest legitimate view of the evidence and to all 

reasonable and legitimate inferences that may be drawn therefrom.‟” State v. Elkins, 102 

S.W.3d 578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 

2000)). Therefore, this court will not re-weigh or reevaluate the evidence. State v. 

Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact, 

not this court, who resolves any questions concerning “the credibility of witnesses, the 

weight and value to be given the evidence, as well as all factual issues raised by the 

evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict removes 

the presumption of innocence and replaces it with a presumption of guilt. State v. Evans, 

838 S.W.2d 185, 191 (Tenn. 1992). The burden is then shifted to the defendant on appeal 

to demonstrate why the evidence is insufficient to support the conviction. State v. 

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court applies the same standard of 

review regardless of whether the conviction was predicated on direct or circumstantial 

evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

In State v. White, 362 S.W.3d 559, 578 (Tenn. 2012), our supreme court overruled 

the line of cases that required a separate due process analysis to analyze the sufficiency of 

the evidence of a kidnapping conviction and an accompanying felony. The court held 

that the inquiry of whether the removal or confinement of the victim was essentially 

incidental to the accompanying felony “is a question for the jury after appropriate 

instructions, which appellate courts review under a sufficiency of the evidence standard 

as the due process safeguard.” Id. at 562. The court reasoned that “[t]he jury, whose 

primary obligation is to ensure that a criminal defendant has been afforded due process, 

must evaluate the proof offered at trial and determine whether the State has met its 

burden.” Id. at 577. The court opined that an appellate court‟s role in evaluating the 
12

sufficiency of the evidence “qualifies as the ultimate component of this constitutional 

safeguard.” Id. at 578.

The court promulgated a set of jury instructions to “ensure that juries return 

kidnapping convictions only in those instances in which the victim‟s removal or 

confinement exceeds that which is necessary to accomplish the accompanying felony.” 

Id. In order for the jury to determine whether the elements of aggravated kidnapping 

were established beyond a reasonable doubt, there must be “a determination of whether 

the removal or confinement is, in essence, incidental to the accompanying felony or, in 

the alternative, is significant enough, standing alone, to support a conviction.” Id. 

The defendant does not contend that the trial court failed to provide the jury with 

the White instructions. Therefore, we review the issue to determine if the evidence was 

sufficient for a rational trier of fact to have found beyond a reasonable doubt that the 

confinement was not essentially incidental to the aggravated robbery. 

Aggravated kidnapping is defined as the knowing and unlawful removal or 

confinement of another “so as to interfere substantially with the other‟s liberty” that is 

committed “[w]hile the defendant is in possession of a deadly weapon or threatens the 

use of a deadly weapon.” T.C.A. § 39-13-302, -304(a)(5) (2010). 

Aggravated robbery “is the intentional or knowing theft of property from the 

person of another by violence or by putting the person in fear” that is “[a]ccomplished 

with a deadly weapon or by display of any article used or fashioned to lead the victim to 

reasonably believe it to be a deadly weapon.” T.C.A. § 39-13-401(a), -402(a)(1). 

Viewing the evidence in the light most favorable to the State, the proof shows that 

the defendant and two other men kicked in the door of B.M.‟s home and entered the 

residence carrying guns. T.B. and P.M. entered the living room, where Mr. Pointer was 

aiming a gun at B.M.‟s head. Rather than restraining the family in the living room, the 

men took T.B., P.M., and B.M. into T.B.‟s room at gunpoint, and the defendant took J.C. 

at gunpoint from his bedroom and into T.B.‟s bedroom. In the bedroom, T.B., P.M., and 

J.C. were forced to lie on their stomachs on the bed while their hands, feet, and mouths 

were bound with duct tape. Once the victims were bound, the defendant then ransacked

the house, and his gun was visible for the duration of the incident, which lasted about 

thirty minutes. After taking the victims‟ cell phones and money from P.M.‟s purse, the 

defendant continued to search the house while the victims were restrained and held at 

gunpoint. Before exiting the residence, the defendant and the others ripped the 

telephones out of the wall and instructed the victims not to leave until the men were gone. 

Once the men were gone, the victims were able to free themselves from the duct tape and 

call the police. We conclude that the evidence was sufficient to show that the removal 

and confinement of the victims exceeded that necessary to effectuate the aggravated 

robbery. The defendant is not entitled to any relief. 
13

II. Motion to Suppress

The defendant argues that the trial court erred in denying his motion to suppress 

the photographic lineup. Specifically, he contends that the identification procedure was 

unduly suggestive and that the totality of the circumstances weighs against a finding that 

the identifications were reliable. 

At the motion to suppress hearing, T.B., J.C., and Detective Strickling testified. 

T.B. and J.C. provided the same description of the incident and physical description of 

the defendant as they did at trial. J.C. estimated that although he saw the defendant for 

only thirty seconds in the living room, the entire incident lasted for twenty-five to thirty 

minutes, and he was able to see the defendant for a total of twenty or twenty-five 

minutes. T.B. testified that the lights were on in the home during the robbery and that she 

felt as though she was able to get a good look at the defendant‟s visible features. She 

testified that before she viewed the photographic lineup with the defendant‟s photograph,

Detective Strickling told her that “the person can or cannot be on the paper, but just look 

at it and see if [she] can -- if he looks like the guy.” She stated that Detective Strickling 

did not direct her attention to a particular photograph, and she did not recall that there 

was anything unusual about the photographs. She did not recall one of the photographs 

in the lineup being larger than the others. She immediately selected the defendant‟s 

photograph, and she felt “a hundred percent” certain in her identification. She testified 

that Detective Strickling did not show her the defendant‟s tattoo and that she did not 

know whether any of the individuals in the photograph lineup had a tattoo. 

J.C. testified that he was shown a photographic lineup in the kitchen of his home. 

He stated that he was alone in the kitchen when he viewed the lineup. He testified that a 

detective told him that “he was going to show [J.C.] a picture of guys and the guy that he 

might not be on there, but he told [J.C.] stop and try [his] hardest to see if [he] can find 

the guy.” He stated that he was never told that one of the individuals had tattoos and that 

his attention was not directed to a particular suspect in the lineup. J.C. testified that there 

was nothing particular about the lineup that caused him to identify a photograph. He 

testified that all of the heads in the photographs in the lineup were the same size and 

taken from the same angle. He was able to identify the defendant from the lineup, and he 

felt “75, 80” percent sure of his identification. Detective Andrew Strickland5testified 

that he interviewed T.B., P.M., and J.C. at the scene of the crime. He stated that all three 

victims gave the same general description of the suspects. The defendant was described 

 

5 At the suppression hearing, the record indicates that the detective‟s name was “Andrew 

Strickland,” but the trial transcript indicates that he gave his name as “Edmond Strickling.” Despite the 

discrepancy, it appears that the individual who testified at the suppression hearing was the same 

individual who testified at trial. 
14

as wearing a hoodie over his head, having dreadlocks, and a tattoo of the cursive letter 

“C” on his forearm. The victims described the defendant as “medium height.” He 

testified that a patrol officer would have included the description in the patrol report and 

that the description in the report stated that the defendant was “[f]ive-eight, 170 pounds, 

black hair, brown eyes.” Detective Strickland agreed that the description included that 

the defendant had dreadlocks and the tattoo of the letter “C.” He agreed that the 

description was similar to that of the defendant.

Detective Strickland testified that he received a CODIS hit on the DNA recovered 

from P.M. that identified Mr. Pointer as a suspect. He met with T.B. and P.M. to show 

them a lineup, and at this meeting T.B. informed him that she had seen the defendant in 

jail. He identified the date that she was arrested and cross-referenced it with every male 

that was arrested that day. He identified the defendant and found that he matched the 

description given by the victims. When he later interviewed Mr. Pointer, he brought a 

photograph of the defendant. Mr. Pointer identified the defendant from the photograph 

and stated that his name was “Rod.” Detective Strickland compiled a photograph lineup 

containing the defendant‟s photograph and showed it to the three victims. He testified 

that the photographs in the lineup were in black and white. At the time that he compiled 

the lineup, the police department was in the process of activating a new operating system. 

As a result of the change, Detective Strickland either did not have access to all of the 

photographs previously in the database, or they had been deleted. Law enforcement were 

learning how to input driver‟s license photographs and jail photographs into the same 

lineups, and some of the driver‟s license and jail photographs had different backgrounds. 

In order to avoid drawing attention to the color photographs, Detective Strickland made 

all of the photographs black and white. He stated that he attempted to include 

photographs of individuals that matched the defendant‟s description. He testified that he 

showed the lineup to each of the victims separately. 

Detective Strickland testified that he read the victims the photograph identification 

form. He explained to the victims that “they‟re going to be looking at photos that the 

guilty person may or may not be in here[;] it could also be used to eliminate suspects if 

there are any suspects.” He testified that he did not tell T.B. prior to the lineup that he 

had discovered the person she saw in booking or that the person had a tattoo of the letter 

“C.” He did not tell any of the victims that he had identified the person T.B. saw in 

booking or that he matched the description of one of their assailants. He testified that 

both T.B. and J.C. selected the defendant‟s photograph. He stated that T.B. was “[a] 

hundred percent” confident in her identification and that J.C. was eighty percent 

confident.

On cross-examination, Detective Strickland testified that he was not provided with 

a description of the color of the defendant‟s tattoo. He agreed that there was a 

photograph of the tattoo in the police database. He testified that the heads of the 
15

individuals in the defendant‟s photograph lineup were all the same size. The court 

examined the lineup and observed that in photographs three and four, “the heads seem to 

be a little bit closer because the upper body is not showing[.]” Photograph four was the 

defendant‟s photograph. 

The findings of fact made by the trial court at the hearing on a motion to suppress 

are binding upon this court unless the evidence contained in the record preponderates 

against them. State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The prevailing party is 

entitled to the strongest legitimate view of the evidence and all reasonable and legitimate 

inferences that may be drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521 

(Tenn. 2001). However, the application of the law to the facts is a question of law that 

this court reviews de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). “Absent a 

showing by the defendant that the evidence preponderates against the judgment of the 

trial court, this court must defer to the ruling of the trial court.” State v. Cribbs, 967 

S.W.2d 773, 795 (Tenn.1998). 

A conviction challenged on the grounds of an improper photograph lineup “will be 

set aside on that ground only if the photographic identification procedure was so 

impermissibly suggestive as to give rise to a very substantial likelihood of irreparable 

misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968). In Neil v. 

Biggers, 409 U.S. 188, 198-200 (1972), the United States Supreme Court promulgated a 

two-part analysis to determine whether a pretrial photograph identification procedure 

violated a defendant‟s due process rights. First, the court must consider whether the 

lineup was unnecessarily suggestive. Id. at 198. Second, if the court finds that the lineup 

was suggestive, it must consider “whether under the „totality of the circumstances‟ the 

identification was reliable even though the confrontation procedure was suggestive.” 

Biggers, 409 U.S. at 199. 

In examining the totality of the circumstances, courts should consider: (1) the 

opportunity of the witness to view the criminal at the time of the crime; (2) the witness‟ 

degree of attention; (3) the accuracy of the witness‟ prior description of the criminal; (4)

the level of certainty demonstrated by the witness at the confrontation; and (5) the length 

of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200. It is not 

necessary to consider the totality of the circumstances if the trial court finds that the 

identification procedure was not unnecessarily suggestive. State v. Butler, 795 S.W.2d 

680, 686 (Tenn. Crim. App. 1990). 

We have examined the lineups shown to T.B., P.M., and J.C. The array includes 

six photographs of younger African-American males, all of whom have dreadlocks that 

are similar in length. The photographs are generally similar in size, although the heads of 

the suspects in two photographs, including the one of the defendant, appear closer to the 

camera because the upper bodies of the suspects are not visible. However, this size 
16

difference is not pronounced. Additionally, one of the photographs, not containing the 

defendant, is visibly darker than the other five. The differences in the photographs are 

slight, and we conclude that the photographs were not so “grossly dissimilar” as to render 

the lineup unnecessarily suggestive. See State v. Edwards, 868 S.W.2d 682, 694 (Tenn. 

Crim. App. 1993). 

However, even if the lineup were unnecessarily suggestive, the totality of the 

circumstances indicates that the identification was reliable. Both T.B. and J.C. testified

that they each were able to see the defendant for about fifteen or twenty minutes during 

the incident and that the defendant was in close proximity to them while the victims were 

in T.B.‟s bedroom. The defendant‟s bandana slipped off of his face several times during 

the incident, and the victims testified that they were able to see the majority of his face. 

Both victims testified that they focused on the defendant‟s physical features in hopes of 

later identifying him. Both victims described the defendant as being slightly taller than 

5‟7”, with a medium physical build and shoulder length dreadlocks, and this physical 

description matched that of the defendant. The victims also identified a tattoo of the 

letter “C” on the defendant‟s arm, and Detective Strickling testified that the defendant 

had such a tattoo. Although the victims first viewed the lineup over a year and a half 

after the crime, T.B. immediately identified the defendant and stated that she was one 

hundred percent certain in her identification. J.C. also identified the defendant in the 

lineup and testified that he was seventy-five to eighty percent confident in his 

identification. T.B., J.C., and Detective Strickling all testified that Detective Strickling 

did not direct their attention to a particular photograph and that nothing other than a 

recognition of the defendant caused them to select the photograph of the defendant. 

Based on the totality of the circumstances, we conclude that the photograph lineup was 

sufficiently reliable, and the defendant is not entitled to any relief. 

III. Sentencing

The defendant argues that the trial court erred in imposing his sentence. 

Specifically, he contends that the trial court misapplied an enhancement factor and that 

consecutive sentencing was not the least severe measure necessary to accomplish the 

purpose for imposing the sentence. 

This court reviews challenges to the length of a sentence under an abuse of 

discretion standard, “granting a presumption of reasonableness to within-range 

sentencing decisions that reflect a proper application of the purposes and principles of our 

Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The court will 

uphold the sentence “so long as it is within the appropriate range and the record 

demonstrates that the sentence is otherwise in compliance with the purposes and 

principles listed by statute.” Id. at 709-10. The misapplication of an enhancement or 
17

mitigating factor by the trial court “does not invalidate the sentence imposed unless the 

trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. A 

sentence imposed by the trial court that is within the appropriate range should be upheld 

“[s]o long as there are other reasons consistent with the purposes and principles of 

sentencing as provided by statute.” Id.

After the trial court establishes the appropriate range of the sentence, the court 

must consider the following factors to determine the specific length of the sentence: (1) 

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

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

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

information offered by the parties on the applicable 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; and (7) any statement the 

defendant wishes to make in his own behalf about sentencing. T.C.A. § 40-35-210(a), 

(b)(1)-(7).

The defendant argues that the trial court should not have applied enhancement 

factor two. The record reflects that the defendant informed the other men that they were 

in the correct house after he identified T.B.‟s sister‟s boyfriend in a photograph. The 

victims testified that the defendant was continually asking where the money was, that he 

was the individual who was primarily responsible for searching the house, and that he 

emptied the contents of P.M.‟s purse onto the ground. As the trial court found, Mr. 

Pointer‟s primary objective appeared to be the sexual assault of the victims while the

defendant appeared to take the lead role in the robbery. Further, we note that this 

enhancement factor “does not require that the defendant be the sole leader but rather that 

he be „a leader,‟ and as a result both of two criminal actors may qualify for enhancement 

under this factor.” State v. Freeman, 943 S.W.2d 25, 30-31 (Tenn. Crim. App. 1996) 

(citing State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993). The record 

supports the finding that the defendant was a leader of a criminal offense involving two 

or more criminal actors, and he is not entitled to any relief. 

The defendant also argues that the trial court erred in imposing consecutive 

sentences. He contends that his effective sentence of thirty-four years was not the least 

severe measure necessary to achieve the purposes of the imposed sentence. 

A trial court‟s decision to impose consecutive sentencing is reviewed under an 

abuse of discretion standard accompanied by a presumption of reasonableness, so long as 

the trial court states for the record that the defendant falls into one of seven categories 

enumerated in Tennessee Code Annotated section 40-35-115(b). State v. Pollard, 432 

S.W.3d 851, 861 (Tenn. 2013). A court may impose consecutive sentences if it finds that 
18

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.” T.C.A. § 40-35-115(b)(4). In order to impose consecutive sentences on this basis, 

the trial court must also “conclude that the evidence has established that the aggregate 

sentence is „reasonably related to the severity of the offenses‟ and „necessary in order to 

protect the public from further criminal acts.‟” Pollard, 432 S.W.3d. at 863 (quoting State 

v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)). “So long as a trial court properly 

articulates reasons for ordering consecutive sentences, thereby providing a basis for 

meaningful appellate review, the sentences will be presumed reasonable and, absent an 

abuse of discretion, upheld on appeal.” Id. at 862.

The trial court found that the defendant was a dangerous offender and 

appropriately considered the Wilkerson factors. The court noted that home invasions 

were “extremely serious” and found that confinement was necessary to avoid 

depreciating the seriousness of the defendant‟s crime. The trial court also found that 

confinement was necessary to protect the public, citing to the defendant‟s prior criminal 

history and propensity to continue his criminal activities. The court additionally 

observed that less restrictive measures had previously been applied to the defendant 

without success. The record supports the findings of the trial court, and we conclude that 

the trial court properly imposed consecutive sentences. 

Although the trial court properly considered the enhancement factors and imposed 

consecutive sentencing, we note that there is a discrepancy between the sentencing 

hearing and the judgment of conviction for Count 9, possession of a firearm with the 

intent to go armed during the commission of a dangerous felony. At the sentencing 

hearing, the trial court stated that it was imposing a six-year sentence for the conviction. 

The judgment of conviction reflects that the defendant received a four-year sentence. In 

order to clarify this discrepancy, we remand the case for resentencing as to Count 9. We 

also note that the judgment erroneously lists the code provision for the conviction offense

as Tennessee Code Annotated section 39-17-1417 instead of 39-17-1324. Therefore, we 

also remand the case for the entry of a corrected judgment reflecting the proper code 

section for the conviction offense. 

CONCLUSION

Based upon the foregoing, we affirm the judgments of the trial court and remand 

the case for resentencing as to Count 9. 

_________________________________

JOHN EVERETT WILLIAMS, JUDGE