### 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 felon y, 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 photograph ic lineup identification; and that the trial court erroneously applied an enhancement factor and erred by imposing co nsecutive 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; Judgment s of the Criminal Court Affirmed ; Case Remanded

J OHN E VERETT W ILLIAMS

, J. delivered the opinion of the Court, in which A LAN E.

G LENN and R OGER A. P AGE

, JJ. joined.

Joshua L. Brand (on appeal), and Mark Kovach (at trial), Nas hville

, 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 Attorney s 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. 1 testified that at the time of the incident, she was liv ing 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 some one 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 gun s , which the victims testified were visible for the entirety of the incident. T.B. testified that the victims‟ cell phones were all on a d resser 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 defenda nt as an African

- American male who was “kind of short” with “shoulder length” drea dlocks. 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 l etter “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 see n 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 shoulder s. She also testified that his sleeves we re 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 identi fied 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, who m they mistakenly believed live d at the residence. She testified that the defendant, a fter seeing a picture of her sister‟s boyfriend, informed Mr. Pointer and Pop that they were “i n 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 African

American 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 in to 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 back s . Mr.

Pointer then put duct tape on their hands, ankles, and mouth s . 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

d efendant 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 “goin g 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 co ntents 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 h er that “he was going4

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.

I n 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, an d 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

r esidence. 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 walkie

talkie, and this person told the men to exit the residence. J.C. testified that b efore 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 t he

sc ene. 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 pro vided 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 hosp ital 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 defendan t, 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 speak5

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 sh e 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

. H e asked her to call the numbers to help him get out of jail “before his probation violation c[a]me up in t he 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 s wab 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, De tective 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 a s long as

– as well as gui lt.” 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 el iminating

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 contain ing 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 disc over 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 gi ven to him by the victims.

A fter 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 phot ograph out of the6

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 t ype of vehicle that he

drove.

After speaking with Mr. Pointer, Detective Strickling compiled a photograph ic 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 li neup 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 Strickla nd 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 incid ent. 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 r obbery, 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 defenda nt and Pop. He agreed that the District Attorney did not threaten him or coerce him int o plead ing 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 lin eup 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 dis cussed “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 ide ntifications.”

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 identifi cation 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 testi fied that the lineup was not a double blind lineup because

Detect ive 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

gu idelines were published in 1999. He agreed tha t the combined effect of a high

- stress8

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 t he defendant guilty of all charges.

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

offender. T he State gave a victim i mpact statement on behalf of the victims. The

statement said that both P.M. and T.B. were still sufferi ng 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 tha t [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 re

live the incident by testifying at trial. The defendant claim ed 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 wron g 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 cri me, 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 be ing 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 th at 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 hearin g, 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 ev idence 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 tre atment , as well as the general purposes for which the

Sentenc ing Reform Act was e nacted

.

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, appl ied because the defendant had prior felony conviction s from Georgia,9

numerous misdemeanor convictions from Davidson County, and several crimes that he committed before he was arrested on the instant charges. The co urt 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 rob bing 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 conviction s in Georgia when he comm itted 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 enhance ment factor thirteen, that the defendant was on probation at the time of the offenses, applied because he was on probation from Georgia. The c ourt found that no mitigating factors were applicable.

The trial court found that the offenses committed by t he 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 just ice 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 t hat 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 conviction s 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 th e 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 ea ch 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 senten ce 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. Th e 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 behavi or 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 def

endant 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 fi led 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, t he 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 untime ly 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 fo r 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 th e 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 defe ndant 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 v erdict 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 th e 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, 57 8 (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, whic h 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 eva luate 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 the12

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

sa feguard.” 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 accompanyi ng 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 accompanyi ng 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 determ ine if the evidence was

sufficient for a rational trier of fact to have found b eyond 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).

Aggravat ed 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

reasonabl y bel ieve 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 car rying guns. T.B. and P.M. entered the living room, where Mr. Pointer was aiming a g un 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 gu npoint 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 pu rse
, the

defendant continued to search the house while the victims were restrained and h eld 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 d uct 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 Sup press

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 weigh s 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 tria l. 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 t hat 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 identificat ion. 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 sur e of his identification. Detective Andrew Strickland 5 testified 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 defend ant was described

5 At the suppression hearing, the record indica tes 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

individua l 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

tha t the description in the report stated that the defendant was “[f]ive

- eight, 170 pounds, black hair, br own 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 meeti ng 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 d efendant‟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 p hotographs, 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 explai ned to the victims that “they‟re going to be looking at photos that the guilty person may or may not be in her e[;] 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

h ad 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 test ified 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 the15

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 wa s 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 t he 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 sug gestive. Id. at 198. Second, i f 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 1 99.

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 circumstan ces 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 photogra phs 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

c amera because the upper bodies of the suspects are not visible

. However, this size16

difference is not pronounced. Additionally, o ne of the photographs, not containing the defendant, is visibly darker than the other five. The differences in the photograph s are slight, and w e 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

. Bot h 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 de fendant was in close proximity to them while the victims were
in T.B.‟ s bedroom. The defendant‟s bandana slippe d 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 v ictim s 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 b uild and shoulder length dreadlocks , and this physical

d escription 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 confide nt 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 photograp h 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

sentenc ing decisions that reflect a proper applicatio n 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 comp liance with the purposes and principles listed by statute.” Id. at 709

- 10. The misapplication of an enhancement or17

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 pres entence 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 mitigat ing 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

w as the individual who was primarily responsible for search ing 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 e nhancement
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 t he defendant was a leader of a criminal offense invol ving 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 measur e 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 that18

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 sentenc es on th is basis,
the trial court must also “c onclude 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 “extre mely 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 pr opensity 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 t he judgment erroneously lists the code provision for the conviction offense

as Tennessee Code Ann otated 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 t he trial court and remand

the case for resentencing as to Count 9.

_________________________________ JOHN EVERETT WILLIAM S, JUDGE